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THE JUDICIARY DEPARTMENT 


\ 


OF THE 


DIOCESAN CURIA | 


A DISSERTATION 


SUBMITTED TO THE FACULTY OF THE SCHOOL OF CANON LAW OF THE 
CATHOLIC UNIVERSITY OF AMERICA IN PARTIAL FULFILMENT 
OF THE REQUIREMENTS FOR THE DEGREE OF 


DOCTOR OF CANON LAW. 


| BY 


Y, 
HENRY FRANCIS DUGAN, M.A., J.C. L., 


Priest of the Diocese of Indianapolis. 


THE CATHOLIC UNIVERSITY OF AMERICA 
WASHINGTON, D.C. 


1925 


eane 


Nihil Obstat. 
THOMAS J. SHAHAN, 
Censor Deputatus. 


~Washingtonii, D. C., die XXIV Aprilis, 1925. 


Imprimatur. 
MICHAEL J. CURLEY, 
Archiepiscopus Baltimorensis. 


Baltimorae, die XXXIV Aprilis, 1925. 


TABLE OF CONTENTS 


—___—. PAGE 
Pre ee Serra MRR ORT d Ghar Titalial aru) g, WAL an Le GEMM Paint kt val ep VO ad far a, “6'e 5 
CHAPTER I. 
DEFINITION OF THE THESIS. 
TUCO ERO Penta SET ONC Sa NG Siely wus Laine a ta ad alate al bila! ah bat A 7 
DORM eey We Sane iste ayer chal a olde alwtiaboh's, 4.8 ARNE REGED ORO (ARI aM AR EU SR 7 
SANG OLURIE: CGO LU att Mola \ grat d yeaa eevee atdaale Win mpsiaisvacd avaaeidlae 6 8 
WGGICINEY (ROWOL™ I CHG) OULIB yee ois ele Fie, eo Odie Mit ele © 10 
DPA VABHOIT OF eS UPISOICULOTIS weit Hoke olive: ol shee tdlals fasts, Cle ee tere Glee le 11 
Meaning and Purpose of the Judicial Power............... 12 
Executive, Legislative and Judicial Power Compared..... 12, 13 
Importance: of the. Judicial Power. oe Fed onsen eo tyes 14 
Vergonnel of the Didcesan Cnriay i320 ee ee kee de ceca ol cl ale 14 
CHAPTER II. 
IMPORTANT OFFICERS IN THE EARLY CURIA. 
CALE MIy Ye COOM ELOY el crd a et old wal cieei ai Reds wie eat dvetalalne Weg, a MP Yl ae 17 
THE ARCHDEACON. 
aeY RELMITEL A TCUEORCOIY foo: 2 ita tale en Gide ePeed eda! oily her ha pe tla tas wal oid 18 
Legislation Concerning the Archdeacon.................... 19 
ECAR COTIPEE LG Ne (EPEAT Sse) wp) aheCenal’e dha taste! Malte) me shea iw wlaele rah whe 20 
POUTMIES 67 CO DINO sek uGiE s: euhincd Hal ataye Mites whale nay x abate! &, wel 21 
Wernzsand: Fournier, Compared s is eisai sededi. iaalahbaidd css 22 
THE VICAR GENERAL. 
Reason for the Appointment of a Vicar General............ 23 
Appointment to come from the Bishop.................... 23 
RU OL A DOULEPEOO. Sins Chi alvin e cle ae wil. wisi els alc cleni ime Sih ieee 24 
The Number of Vicars General in a Diocese............... 25 
BVOCUR UG) SIA TICREROTIA SLi CASA cikjltniy ola ch shejat hide) g a tobe eas ote aie 25 
The Power oO1) a Vicars in & | Digcesaics aces dine Kididlh s Md Vin ties 26 
Pade ELOISE) COLE TOWEL cto cit sis aint ucastig Gidieria nw) ete atch iatay alate 27 
OGM A RUGA GIN \ SPGCIRlOs ; 4 (4 vials herald we adalat Moatel dared ia ae 28 
The Right to Recognition as a Prelate.................... 29 
ney mxpiravion: oF the Ollite is ithe nile. id pat oaiey Coke io, 30 
CHAPTER III. 
THE OFFICIALIS. 
PRON TER CAINE WS fol a sie: Bina Maa wie 4 alta «lath alle alain auMbalatd a alba Katad atau yea’ all 32 
PASERADE NY.) cs es) Ge ata ard ek eal a ie acobala ® w lu avabelacahetas suet @ 32 
Pretor, the ndexein “Romath (aw), 4 siits, tases aie aalaieebds cide 32 
The Legislative and Judicial Power in Apostolic Times...... 33 
PETER ACAVILTECE AS she rs Se ee hye ee Sa As AUR ie SS 34 
The Judge in Justinian and Canon Law................... 35 
PHOT Oia ie ITT CNG) COG) .::), kala hla ee ee late Gis aed cata halt 36 
Nature and Extent of the Power of the Officialis.......... 37 
The Number of Officials in a Diocese.................2..08% 38 
(JU TINCACTONAG TOR) tHIS POSIEIOIE i oud cs cle ee le a Ohd weslha ae a abe 39 
TOO VAIL EOP RN TS: COR LIU Lia cea lcba w Mabe uae Wig ay Neca alive, Wik 39 
SYNODAL AND PRo-SYNODAL JUDGES. 
PCR LOPS eee, a GE Hee StU ee Lee Rn Heo aoe ack 40 
PLU USTCCREL RARER NCL hth cite Rett A teem EE Ont ner eR 42 
CTRL TEC ETC E eee AME TAD ME ASLAM AR VakUB Poti s ie a wierd a ed alates sed, et 42 
Election, Substitution, Removal of Judges................. 43 
CIGReATION Ongena: CNCR. deem! lt, aul uk aly acute G Vieille Walalata wg 43 
Vompared) with: the: Oficialigye si See. CER yn ue Goa waked 44 


+ Table of Contents. 


PAGE 
Hield of Action for ‘the (Synodal. Wudgea : 6 Lea e s ea 44 
Collegiate.) Tribunalay ok Uk Sate oue wew ewes Oe tenets A Khe ane 44 
Collegiate Tribunals required by the Code................. 45 
ASSESSORS. 
Controversies Involving) Religions c. 7 o. u eee 48 
CAUSES IN ECCLESIASTICAL TRIBUNALS. 
AUDITORS AND RELATORS. 
Auditors In Generah ii ee Us ee 50 
ELEREOEY seis hey hk) MUN Aa TAR alas AIM ie lg 51 
En thie Coda fk i aha ee a AU al ee 52 
Hligible dor {thie Ode ..0i, avs Bb se aA i bell Danie b>. abe Raa Ren me Rene 52 
Dutiesof the! Anditor sais Gauss sane acho ns ius neue ke Re 53 
The Removal of an Auditor from Office.................... 54 
The Relator in a Collegiate: Tribunal... 2.4 ...04.0. ewww 55 
PHATE sie Sip thet ete, 6 SHR WER wT RUM le LE Jaca 9 a hal at ye ee 55 
Canon Referring ‘to’ the; Rela tery. io Ole ll a ee 55 
Method of Appointment—Removal................0cseceee 56 
CRD NEO ee ees tS Bartana ene Maes Guin 5 Aaa tel cciig 9) erat rr 56 
WOMPe bene Ul i i OER Le Cate CLUS Ac na a 56 
Reason! for | Limitations, i) bea cs TRUE OR GL Sa ee 58 
Ineampetence in Judges) ) 20. 2822 22a RRs Ae 59 
THe: FORMAT 6 ha ey 0 Aedes Cid CE UD Ree ee a 69 
Determining the Competent Forum....................... 61 
Absolute : Competanoe, 4) 00 hs Us i oe ve 63 
Relative Competence...) ioe. ei. lial le 63 
The Competent: Forum in Outlinescii il. er eee en 64 
CHAPTER IV. 
THE PROMOTOR OF JUSTICE AND THE DEFENDER OF THE Bonn. 
Crna VL GSB sayy ele ie dle wiahe a ei es aceeield ley ROI ALO ener ERITH §5 
The Promotor, of Austere ys billy ik Ce ey teller ay RNC 65 
AB LOT I ere dade aialaiatald aid al aly Rte TE GVAIE aa ee nae anne aE er 66 
La i Mranee: and (Spain \0) 24's dasa naam ae IEE Se 67 
EER VERA ia Valier vee id OeMIGT ED Ming 7 RCI Se PSOne, Mie Ean even, Ra ee ill 67 
Thel Defender of the Bonds) eke Uae Oo Mette hc 68 
He UT: 3. PUM Car a RP PUM) Cele RL APIO HOD Ce RERUNS ETH 68 
PUT DOM AM clits niet alti me Cala ad ger ete al ERR e CARNART oo 9c ah an 68 
The Defender in a Sacred Orders Trial.................... 69 
Canonical Requisites for these Offices..................05 69 
Presence required for the Validity of a Legal Process...... 69 
Promotor and Defender in a Single Officer................. 70 
Aare EMOTE a Rhee ORR 0) LPR CP UU RMR RS JAA EAR PART BO IRON Pe LE 
THE NOTARY. 
WEA Seep ee TMU a HEARN AU Ym EEO ale OK AMR AI AM Rts rs OIE? PS EB 7: 
CCLSRIAALIGAL NDCETROM es i UUM ats aN ba ln aie mae i te 73 
INOUE Mes iy He Oded eri Cui ML RNC M In g/L al Mit Suma Nal 74 
Phe: Appomtment) of) the! Notary ou du. ee 74 
Duties tah ine MOLAR CoC Olan) yo Kui LI ul Yl nun eR 75 
CURSORS AND APPARITORS. 
ELI BUOR YN STO NORM ALIN SUT SE aw eh UL RAL AU _16 
Cireor aire) | Cen on sie wr Alacer. Um ale Blin iti dae ON alee 76 
A CE RNA Ea ae FCG C=) ATL aU CQe Mee ADU at UES Ue Re HR ANAM tr 7 
BA LTOGR AP Ey Uh ha A MN Mala OLAV IE eA CM Ah eM 78 
AE eT ME ca Ue CARLO AR OM HEALS MUON AMM RIE Sk gh S1 


8 NE RN ie ORE ES eG Lae A ola veri eiitwles valianig iatlate etala a he ie Nal BU let rb Wan ARR Ree 


PREFACE, 





The purpose of this dissertation is to present a study 
of the canons in the Code of Canon Law which have 
reference to the diocesan curia. 

This subject is a most practical one. In every diocese 
the ordinary must call to his assistance some of his 
priests. These priests form the curia of the bishop, or 
the diocesan curia. Through the power delegated to 
them by the bishop of the*diocese, they give their time 
and attention to the many duties which are assigned to 
them by reason of their appointment to membership in 
the curia. They serve to lighten the burdens which 
would otherwise weigh too heavily on the ordinary of 
the diocese. | 

But one section of the curia has been selected for con- 
sideration and development in this treatise, that is, the 
judiciary department. This subject is treated in the 
Code in the Fourth Book, Canon 1572 to Canon 1593. 
No attempt has been made to consider the wider ques- 
tion of judicial procedure. ‘The plan of the dissertation 
is to enumerate the list of officers who are to be found 
in the judicial department. A brief historical develop- 
ment of the office is then given and the law is quoted on 
such points as the power of the office under discussion, 
the method of appointment, and the removal from office. 

The writer wishes to express his gratitude to Dr. 
Filippo Bernardini, J.U.D., for the advice and assist- 
ance given him in the selection of the subject of this 
dissertation. He also expresses his appreciation of the 
criticism of the work when it was in preparation. The 
eratitude of the writer is due to Dr. Valentine Schaaf, 

5) 


6 Preface 


O.F.M., J.D.C., and to Dr. Louis Hubert Motry, 
S.T.D., J.C. D., for their interest in this work, for havy- 
ing carefully examined the copy of this monograph and 
for the very helpful suggestions. He expresses his thanks 
to Dr. Franceso Lardone, J.'U. D., the Professor of Ro- 
man Law, and to Professor de Olveira Lima, L. H. B., 
Professor of International Law. 


THE JUDICIARY DEPARTMENT OF THE 
DIOCESAN CURIA. 


CHAPTER I. 





DEFINITION OF THE THESIS. 


Diocese. The term diocese signifies the territory of 
the churches which are subject to the jurisdiction of a 
bishop. In its original meaning the word meant the 
management of a household. This is the significance of 
the Greek word from which this term is derived. In the 
course of time this word took on a broader meaning and 
was used to signify the management of a city. It was 
soon taken into the terminology of the Romans. 

The city was usually the residence of the bishop. The 
bishop was the leader of the faithful, the Shepherd of 
the flock. His duties were spread over the territory as- 
signed to him. He managed and ruled the diocese. As 
the juridical territory of the city and the territory man- 
aged by the bishop were usually conterminous, the term 
‘“diocese’’ was soon taken into the ecclesiastical termin- 
ology. Hence the word was finally used to indicate the 
extent of territory under the supervision of a bishop.? 


Curia. ‘The curia is a collective body of officials whose 
duty it is to assist the ruler in the functions of govern- 
ment. The ruler selects the members of his curia and 
outlines the duties which they are to perform. Imperial 
Rome had its curia. It was made up of officers differing 
from each other in dignity and importance. Modern 
rulers have their specially chosen officers and secre- 
taries. The President of the United States has his Cabi- 
net. The members of the Cabinet are in charge of some 
particular branch of work in the government. They are 
placed in this position because they are expert in the 


1 Cath. Encyc., art. Diocese. 


8 The Judiciary Department of the Diocesan Curia. 


particular field of activity to which they are appointed, 
and in order to assist the president in the many duties 
which devolve upon him because of his position as head 
of our government. 

The Supreme Pontiff has a Curia and this curia is 
known as the Roman Curia.2 This body of officials in 
the Papal government is composed of Congregations, 
Tribunals, Offices and Commissions. The duties, rights 
and privileges of the members of the Curia are deter- 
mined by the Pope, or they are determined according to 
the principles of the law as stated in the Code of Canon 
Law.’ 

Just as the Supreme Pontiff has a Curia to assist 
him in the rule of the Universal Church, likewise the 
bishop has a number of officers whose duty it is to assist 
the bishop in the administration of the diocese. The 
nature and the size of the diocesan curia is to be deter- 
mined by the needs and the size of the diocese of each 
bishop. | 


History of the Curia. Maroto is of the opinion that 
there were no fixed or permanent offices, in the sense of a 
diocesan curia, until the Fourth Century. In the begin- 
ning the bishop had complete charge of his diocese. The 
clergy, the faithful and the possessions were under his 
direct rule.* If there was need of special help the bishop 
might have appointed a particular cleric to the duty. 
The office was discontinued when the work was com- 
pleted. 

With the progress of time the Church grew and flour- 
ished in accord with the plans of Her Divine Founder. 
She was no longer limited to a particular city or country. 
Her membership increased and likewise there were more 
priests to minister to the wants of the faithful. It was 
no longer possible for the bishop to give his personal 
attention to the many duties which came to him as head 


*Can. 242. 
* Can. 363. 
‘ Institutiones Juris Can., Tom. 11, n. 760. 


The Judiciary Department of the Diocesan Curia. 9 


of the diocese. Questions of doctrine and discipline, 
disputes to be settled, long journeys to be made in the 
interest of the Church made it necessary for the ruler 
of the diocese to call to his assistance competent priests. 
The curia is the result of a natural growth and evolution. 
The bishop formed the first. curia, sharing his jurisdic- 
tion to the extent necessary for this help. The bishop 
appointed the officer and consequently he had the right 
to discontinue the services of the officer, and abolish the 
office when there was no longer need of the service in 
question. | 

The mention of a few of the early diocesan officials will 
help in comparing the present curia with the curia of 
former times. The Archpriest held a very important 
position. He was selected to look after the interests of 
the priests of the diocese, when the bishop was absent 
from his diocese. He celebrated the Holy Sacrifice in 
the principal, or the Cathedral Church. The Archdeacon 
was selected by the bishop to assist in the administra- 
tion of the temporalities of the diocese. He was permit- 
— ted to conduct a visitation of the parishes. He investi- 

gated abuses and at times acted in the role of judge, set- 
tling disputes and punishing crimes... The Econom was 
known in the Western Church as the Vicedominus. He 
was charged with the temporal affairs of the diocese, 
such as land and property and he could dispose of these. 
The Advocates or the Defensores, were appointed to 
safeguard the rights of the Church before the courts. 
They defended ecclesiastical causes before the civil ma- 
gistrates. The Notaries were commissioned to present a 
written account of the ecclesiastical proceedings and to 
keep a record of all ecclesiastical documents such as let- 
ters of request, dispensations granted and other similar 
papers. The Archivist, the Chancellor and the Libra- 
rian were those officers whose duty it was to keep in or. 
der and to preserve all these documents. The official 
Interpreter or Expositor was assigned to the important 
duty of translating and explaining the text of Sacred 
Scripture to the faithful. The Catechists instructed the 


10 The Judiciary Department of the Diocesan Curia. 


faithful in the rudiments of the Faith. The Grand Peni- 
tentiary acted in the capacity of the official confessor for 
the faithful. The Chanters or the Cantores were ap- 
pointed to render the approved chant of the Church at 
all liturgical functions. Besides these there were others 
of minor importance who assisted the bishop in looking 
after the affairs of the diocese. Laymen could have been 
chosen for some of the offices, such as the Advocates, but 
it seems that the more common practise was to appoint 
clerics. 

These various offices were not established at one and 
the same time. The offices were created and the appoint- 
ments made to the office in accord with the needs of the 
diocese. When it was necessary for the bishop to be 
absent from his diocese, the Archpriest was appointed 
to have charge of the clergy of the diocese. When the 
bishop was within his proper territory the burdens were 
many and these he shared with the priests whom he had 
honored by a call to the duties of the curia. It is to be 
noted, that the offices of the curia which have been men- 
tioned are somewhat different from the offices existing 
in the curia of the dioceses today. The reason for this 
is evident. The bishop instituted certain official posi- 
tions which were needed at a particular time. The need 
no longer existing, the bishop discontinued the service 
of the cleric when his services were no longer necessary 
to the bishop. With the same authority, the bishop 
made new appointments to answer new needs. This ac- 
counts for the change in the personnel of the curia. 
Changes in the future will be fewer, however, since the 
Code gives special consideration to the officers which 
should make up the diocesan curia of today.® 


The Judiciary Power in the Diocesan Curia. The 
members of the diocesan curia are dependent upon the 
bishop for the jurisdiction which they exercise as mem- 
bers of the official family. This jurisdiction varies in 


POHL. BRO LE Tite VLEET er LY | 


The Judiciary Department of the Diocesan Curia. 11 


nature and extent. The bishop is limited in conferring 
of jurisdiction only when such limitations are clearly 
expressed in the Canons of the Code.° The jurisdiction 
of the vicar general and his relation to the bishop, the 
jurisdiction of the Official, or the Judge, in the curia of 
the bishop are points which are clearly defined in the 
Code. In such matters the bishop will follow the law as 
stated in the Code of Canon Law.’ 


Division of Jurisdiction. There are two kinds of ju- 
risdiction. Jurisdiction may be either voluntary or con- 
tentious.2 This distinction applies also to the jurisdic- 
tion delegated to the members of the bishop’s curia. The 
officers in the curia who act in virtue of the former are 
limited to such duties which are of a secretarial or ad- 
ministrative nature. This may include official corre- 
spondence such as Chancery notices or announcements 
which the bishop sends to his priests through the Chan- 
cery. It may be the sending out of the official notice that 
the bishop has granted a dispensation which was re- 
quested. Those who are connected with the diocesan 
Archives act in the same capacity. The office of Chan- 
cellor of the diocese is an example of the voluntary form 
of jurisdiction.® He is the official secretary of the bishop 
and his communications concerning diocesan affairs are 
always conducted in the name of, and with the authoriza- 
tion of, the Ordinary. 


Contentious jurisdiction implies the exercise of an au- 
thority which is quite different. It empowers the one on 
whom it is conferred to act in an executive, legislative, 
or judicial capacity. The person so delegated may act 
in the role of a judge. He thereby has the power to read 
the law officially. As a judge, he may hold court, hear 
causes, interpret the law, render decisions, and fix the 


® Can. 363. 

7 Bouix, Tract. de Judiciis, Pars II, Sec. ITI. 
§ Bouix, 0. c., l. ¢. 

® Wernz, Jus Decr., V. II, n. 633. 


12. The Judiciary Department of the Diocesan Curia. 


penalty for misdeeds. The judicial aspect of the curial 
activity is the matter to be considered in the present 
treatise. ‘The meaning and the purpose of this power 
will be shown. The great importance of such power in a 
society will then be deduced from this as a natural con- 
clusion. 


Meaning and the Purpose of the Judicial Power. It is 
not within the scope of the title of this dissertation to 
give proof of the foundation of the Catholic Church as a 
perfect society. This will be understood as an established 
fact. A doubt in any critical mind can be very easily 
dispelled by the most passing observation of the activity 
of the Church. The Catholic Church is a great force in 
the world today, influencing the minds, hearts, and the 
lives of men. With a well-defined code of doctrine and 
morals, her activity in all the problems which are vexing 
society today, She is giving undeniable evidence of her 
life as an active organized society. 

Being a well-organized society She must possess all 
the prerogatives to be found in a society perfectly or- 
ganized. She must possess, and She must be able to use, 
all those powers which make of an aggregation of human 
beings a society, or a unit. It is the prudent use of these 
powers that will make of the many individual human be- 
ings, a moral unit, agreed on the accomplishment of a 
common purpose. These powers are the executive, the 
legislative and the judicial powers. 


Executive Power. There must be in the Church a 
Chief Executive to direct and formulate the policy to be 
followed by those who are the members of this society. 
The Pope of Rome is the visible Head of the Church. 
He is the earthly representative of Christ, the Divine 
Founder of the Church. The Supreme Pontiff is the suc- 
cessor of St. Peter, the first Pope, who held his office by 
a direct appointment from Jesus Christ. The Pope is 
assisted in the government of the Church by the Bishops 
who are appointed from Rome. 


The Judiciary Department of the Diocesan Curia. 18 


Legislative Power. Laws and regulations are neces- 
sary for the preservation of moral unity in any group 
of individuals. The Decalogue is the basis of all legis- 
lation in the Church. This is the legislation which repre- 
sents a direct revelation from Almighty God. There are 
other laws, which the Church, guided by Divine Wis- 
dom, has found necessary to enact. These laws may by 
purely ecclesiastical, such as the diocesan regulations 
concerning clerical dress and social life. They may be 
ecclesiastical laws based on the divine or natural law, for 
example, the precept to hear Mass on Sunday, the regu- 
lations on fasting and abstinence, the duties of the mar- 
ried state and many other such laws. Regardless of what 
their foundation may be, it is sufficient for the faithful 
to know that the law issues from the legislative authority 
in the Church. 


Judicial Power. From the executive and the legisla- 
tive authority a third power follows necessarily. This 
power is the judicial power.. It pertains to the admin- 
istration of justice. The judicial power calls for the ex- 
istence of judges and courts. The judicial procedure is 
concerned with the actions of the members of a society 
to decide whether or not the actions are in conformity 
with the statutes of the law. A law may be negative or 
positive. It may command the performance of a certain 
act. An unlawful action is one which is contrary to a 
law. The decision as to the lawfulness or the unlawful- 
ness of an act comes within the scope of the judicial 
power. In the court of a society the guilt or the inno-- 
cence of the individual member is established. The judge 
presides over the department of the judiciary. He is 
the official interpreter of the law and his jurisdiction 
extends to all those causes which come within the limits 
of his power. This official position of the judge to inter- 
pret the law renders the individual estimates and indi- 
vidual interpretations of what a law may mean useless 
and unnecessary. The decision of the judge applies the 
law to the case. Unless there be just cause for a recourse 


14 The Judiciary Department of the Diocesan Curva. 


to another court or a legal reason for appeal to a higher 
court, the decision of the first instance stands and the 
case is closed. 


Importance of Judicial Power. The great importance 
of the judicial power in any society is apparent. What is 
the benefit of a code of laws to a society unless the laws 
have some influence on the daily lives of the members of 
that society? Why have fixed statutes if the individual 
members of the society be permitted to disregard them 
at will?) Of what benefit can a law be to a society, if the 
law may be disobeyed without fear of punishment? These 
questions were surely in the mind of Pope John XXII 
when he wrote: ‘‘It would be folly to make laws unless 
there were some one to enforce them.’’?° ‘This import- 
ant power of enforcing laws, is vested in the courts and 
operates through the decisions of the judges. In the 
courts of justice the guilty receive the punishment for 
their transgressions of the law, and the innocent are de- 
clared free through the impartial adjudication of their 
acts. This judicial institution, like so many other insti- 
tutions in the social life, had its beginning, and developed 
according to the needs of the society whose needs it 
served. 


Personnel of the Diocesan Judiciary. The persons to 
be considered in this dissertation are those members of 
the diocesan curia who attend to the ‘‘res judiciales.’’ 
It is quite clear from the Code that the fullness of the 
judiciary power is vested in the Ordinary of the diocese. 
This fact is established from Canon 1572, § 1: 


‘‘In unaquaque diocesi et pro omnibus causis a iure non ex- 
presse exceptis, iudex primae instantiae est loci Ordinarius, qui 
iudiciariam potestatem exercere potest, per se vel per alios, 
secundum canones qui sequuntur.”’ 


The canon states that this is true in every diocese, ‘‘in 
unaquaque diocesi.’’ Ecclesiastical territory which has 


1° Cap. un, de Judiciis, II. I, in Extrav. Comm. 


The Judiciary Department of the Diocesan Curia. 15 


been canonically erected constitutes a diocese.*! Both au 
abbaey and a prelacy nulliws are included in the term 
diocese.1*? The Apostolic Vicariate and the Apostolic 
Prefecture are not to be included.t® Should it happen 
that the episcopal see be vacant by death or other rea- 
son, the judiciary power is then held by the vicar capitu- 
lar, or, as in this country, by the administrator of the 
diocese. It follows logically, that the judiciary power is 
also enjoyed by the one who rules an abbacy or prelacy 
nullius.14 

The Ordinary may exercise this power in person, ‘‘ per 
se’’ or he may act through another, ‘‘per alios.’’ This 
power is ordinary and permanent as in the case of the 
officialis of the curia, or it is merely delegated for a par- 
ticular time and cause as it is done when the synodal 
judges act.1*° When reference is made to the personnel 
of the judiciary in this chapter there is no intention 
of including the Ordinary of the diocese. On the con- 
trary, those to whom the Ordinary has delegated this 
power are meant. The following quotation. from the 
Code will demonstrate who these persons are: 


‘Curia diocesana constat illis personis quae Episcopo aliive, 
qui loco Episcopi, diocesim regit, opem praestant in regimine 
totius diocesis. Quare ad eam pertinent vicarius generalis, offi- 
cialis, cancellarius, promotor justitiae, defensor vinculi, synod- 
ales iudices et examinatores, parochi consultores, auditores, 
notarli, cursores et apparitores.’’ 1° 


In the reading of this canon it is well to keep in mind 
what has been stated concerning the extension of the 
term diocese in Canon Law. The same statement applies 
to the term Ordinary. ‘The diocesan curia is composed 
of the persons who assist the bishop in the duties of 
governing the diocese. This group is composed of both 


11 Noval, Lib. IV, De Processibus, n. 110. 

12 Can. 215. THM OVERLY) 0.) C0" ty. C, 
14 Can, 215. 

15S. d’Angelo, La Ouria Diocesana, Sez. II, Cap. I, n. 6. 
16 Can. 363, par. 1 and 2. 


16 The Judiciary Department of the Diocesan Curia. 


lay and clerical agents.'7 The extent to which they may 
assist the Ordinary depends entirely upon the nature of 
the office to which they are appointed. The curators and 
the apparitors,’® by the material aid they give, are truly 
members of the curia, as well as the vicar general, or the 
official of the diocese. 

The officers of the curia mentioned in Canon 363, the 
second paragraph, may be divided into two classes. The 
basis of the distinction is the nature of the jurisdiction 
which the bishop confers upon them. To the first group 
are assigned all those who assist in the administration 
of the spiritual and temporal matters in the diocese. 
These persons have voluntary jurisdiction and among 
them we find the vicar general, chancellor, payish con- 
sultors, ete.® To the second group belong the other 
members of the curia and their duties center about the 
judicial affairs, or the ‘‘causae contentiosae’’ of the dio- 
cese. To this group the bishop grants jurisdiction over 
criminal and contentious causes which may arise.?? The 
purpose of this dissertation is to consider the canonical 
powers of this second group. Hence the official,” synod- 
al judges,?? instructors and counsellors,?* notaries, the 
promotor of justice, defender of the bond,?* cursors and 
apparitors,?> will be considered historically and canon- 
ically in the chapters which follow. Before taking up the 
first of these, the official, an historical sketch will be given 
of the archdeacon and also of the vicar general. The 
former deserves our attention because of his precedence 
in history as an important officer in the curia. The latter 
is to be considered because of the relation between the 
archdeacon and the vicar general and more especially 
because of the provision in the Code which makes it pos- 
sible for the vicar general to act in the capacity of official 
or judge as well, in the diocesan curia.”°® 


17 Can. 373, par. I. 18 Can. 1591, par. I. 

1° Vermeersch-Creusen, Hpitome Iuris Oanonici, Tom. I, n. 432. 
20 Vermeersch-Creusen, o. c., l. ¢. Pe NE LO oe 

22 Can. 1574. 23 Can. 1580. 


24 Can. 1585-1590. 25 Can. 1591-1593. 
26 Can. 1573, par. I. . 


The Judiciary Department of the Diocesan Curia. 17 


CHAPTER IT. 





ImporTANtT OFFICERS IN THE Haruty Curt. 


Curia a Necessity. The rapid growth of the Church 
and the consequent multiplication of the duties which fell 
to the lot of the bishops, are the reasons given by Canon- 
ists for the organization of the diocesan curia.t’ Among 
the first diocesan officers, the Archdeacon stands out as 
one of the important members of the curia. His prom- 
inence is noted as early as the fourth century.? The first 
mark of distinction which characterized the Archdeacon 
was that of priority or presidency over seven deacons. 
It seems that the custom of Apostolic times of appoint- 
ing deacons was continued in some of the ancient 
Churches. The appointment of one of the deacons to 
be the Archdeacon was made by the bishops. The one 
appointed was not necessarily the senior deacon but one 
whom the bishops considered qualified for this position.* 


Tur ARCHDEACON. 


The principal work of the Archdeacon was the custody 
and administration of the temporal goods of the diocese. 
He was the one to whom the offerings of the faithful 
were entrusted. With the money entrusted to him he 
helped the poor and those in need of assistance. He was 
present and assisted the bishop at the ceremony of ordi- 
nation. He exercised jurisdiction over clerics who were 
his subjects. He was empowered to visit the parishes, 
point out and correct abuses which he found. He might 
do this by a judicial procedure in which process the 
Archdeacon acted as judge.® 


1 Wernz, Jus Canonicum, Tom. II, Tit VIII, Art. I, n. 634. 

? Thomassin, Vetus et Nova Eccl. Discip., Cap. XVII, P. 1. 12. 
8’ Wernz, 0. c., l. ¢. 

*Thomassin, o. ¢.,\P. I, 1. 2, Cap. 17, n. 11: 

eGo Li parol D265: Caps. Leerd x, deo. archid:,, f)23: 


2 


18 The Judiciary Department of the Diocesan Curia. 


The foregoing applies to the person and the activity 
of the Archdeacon who resided in the episcopal city. He 
was called the ‘‘ Archidiaconus Civitatis,’’ that is, of the 
city, in contradistinction to the rural archdeacon.° 


The Rural Archdeacon. The rural Archdeacon was 
appointed to a certain locality of the diocese. This 
place was known as the Archdeanery and was precided 
over by the Archdeacon. The practise of dividing the 
diocese into archdeaneries is found in France at the be- 
ginning of the ninth century.* According to Fournier, 
‘(There were three archdeacons in the diocese of Paris, 
six in the diocese of Chartres and two in Arran. In 
former times there was but one.’’® Sometime after the 
ninth century this custom was gradually introduced in 
England, Germany and later into Italy.® 

In the eleventh century new powers were assumed hy 
the Archdeacon. By this time he claimed and made use 
of, juridical as well as administratorial power. In the 
archdeanery, the Archdeacon considered himself su- 
preme. In disputes, legal controversies and the punish- 
ment of crime, the Archdeacon acted in the role of a 
judge. His tribunal was the court of first instance. 
F'rom this court an appeal could be made to the episcopal 
tribunal, or that tribunal in which the bishop was judge.’® 

At the close of the twelfth and in the early part of the 
thirteenth, the bishops faced a serious problem. ‘The 
Archdeacon was exceeding the rightful powers of his 
office. He was assuming a priority in ecclesiastical legal 
procedure which belonged to the bishop of the diocese. 
Because of this condition it became necessary to define 
the limits and nature of the Archdeacon’s jurisdiction, 
for the safeguarding of the episcopal authority and dig- 
nity.14 


POW CYTE, Ds 1s) bx Cog hae 

7 Fournier, Les Origines du Vicaire Général, Chap. ITI. 

® Fournier, ibid. 

° Wernz, 0. c., ibid. 

1° Cap. 7, 9, 10, X, de off. archid., I, 23. 

11 Cap. 6, 8, X, de off. archid.; Cap. 3, X, de poenis, V, 37. 


The Judiciary Department of the Diocesan Curia. 19 


The situation was further aggravated by the change 
which had crept in gradually in the method of appoint- 
ment of the Archdeacons. Formerly, the Archdeacon 
was appointed by the bishop who was free to make the 
selection. The evils which accompanied the practise of 
conferring of benefices were felt here also. The arch- 
deanery was a benefice and desired because of the rank 
of position and income. The civil authorities often in- 
terfered in the appointments. In some instances the 
civil ruler made the appointment directly. Again he 
might influence the choice of the bishop. The Cathedral 
Chapter had been known to select an Archdeacon, inde- 
pendent of the bishop’s wish in the matter.’? 

The inevitable consequence of this interference was 
that the Archdeacons appointed by authority other than 
episcopal, considered themselves independent of the Or- 
dinary of the diocese in matters of administration and 
jurisdiction. As Maroto states, these officers considered 
their position ‘‘a jure’’ that is, by right or by law. It is 
clear from this that the bishop might experience some 
difficulty in the removal of an Archdeacon who had ex- 
ceeded the limits of the archdeaconal power." 


Legislation. ‘‘It is not to be wondered at,’’ writes 
Wernz, ‘‘ that the bishops took council as to the method 
and means by which they might limit and control the 
powers of the Archdeacon, and to appoint other officials 
in curia whose appointment and removal depended upon 
the Ordinary.’’ 14 

The first effort to correct the abuse was the appoint- 
ment of a new type of officer in the curia. There is 
record of this action early in the twelfth century.!® In 
the thirteenth century the bishops appointed officers who 
were to take their place in curia residing in the city with 
the bishop, or to live at a stated place in the diocese. 


12 Maroto, o. c., Tom. II, n. 760. 

*® Maroto, 0. ¢., l. c., “a jure datur, non ab episcopo assumptus.” 
14 Wernz, 0. c., l. c., e. 8, Cone. Turon., 1234. 

*® Wernz, 0. c., l. ¢.; ¢. 22, Cone. Rothomag. 1190. 


20 The Judiciary Department of the Diocesan Curva. 


These officers were appointed by the bishops and were 
removable from office ‘‘ad nutum episcopi.’’ The offi- 
cial who resided in the city was called the ‘‘officialis prin- 
cipalis’’ and to him appeal could be made from the court 
of the ‘‘officiales foranei’’? or those who were appointed 
in certain parts of the diocese, outside of the cathedral 
city.?® 

It is the opinion of Wernz that the ‘‘officialis princi- 
palis ’’ is the vicar general of later history. This officer, 
the vicar general, is mentioned in the Decretals of Greg- 
ory IX. In the later compilation of Boniface VI and 
Clement, the office of vicar general frequently referred 
to in the constitution of laws and regulations concerning 
the position and activity of the vicar general in the 
curia..7 Although this office was not instituted in the 
thirteenth century it is between the years 1234 and 1298 
that this official institution became known. This same 
period marks the decline of the Archdeacon’s powers and 
importance. 


In the Council of Trent. The bishops met the prob- 
lem of the Archdeacon’s power in another way, that is, by 
direct legislation against them. In the Council of Trent, 
it was declared that the Archdeacon could not act as a 
judge in prima instantia in matrimonial cases. He was 
also forbidden to render judgment in criminal cases in- 
volving the trial of clerics.‘ In a later session of the 
council they declared that the Archdeacon had no Jjuris- 
diction over cases of clerics charged with the crime of 
concubinage. Neither could the Archdeacon excommuni- 
cate those against whom a charge had been made.*® 

By enactments such as those just cited, as well as 
through the more direct procedure of the bishops in 
appointing new officers, the archdeacon lost his position 
and powers in the curia of the diocese. Today he is not 


16. Wernz, 0. ¢., l. c., quoting Inn. IV, in Const. “ Romana Ecclesia.” 
17 Cap. 23, de off. vic., I, 13, in Sext; Cap. 2, de rescr. 1, 2 in Clem. 
18 Sess. XXIV, de ref., C. 20. 

19 Sess. XXV, de ref., Cap. 3. 


The Judiciary Department of the Diocesan Curia. 21 


mentioned in the list of the diocesan officers. The title 
of Archdeacon today is more commonly known in the 
liturgical and ceremonial functions than in the juridical 
offices of the Church. 

A phase, somewhat different from the official charac- 
ter of the Archdeacon, his decline, removal, ete. from the 
curia is presented in a late work of Edouard Fournier, 
‘‘Les Origines du Vicaire General.’’*° This work is an 
historico-canonical study of the origin of the vicar gen- 
eral as an ecclesiastical officer. Fournier objects to the 
statement that the office of vicar general was created 
by the bishops for the express purpose of suppressing’ 
the Archdeacon.*! He tries to establish the point that 
the official appointed about the eleventh century in 
France is an officer quite different and distinct in his 
activities from the vicar general of a later century.?? 
More attention will be given to this particular point in a 
later chapter of this dissertation. 


Fourmer’s Opinion, It is the opinion of Fournier that 
the historical development of the office of vicar general 
should be traced from another ecclesiastical officer—the 
procurator-general. This officer seems to have origin- 
ated about the thirteenth century. The French Canonist 
quotes and adopts Reiffenstuel’s definition of a procura- 
tor, that is one who is ‘‘pro alio curator, nempe pro- 
domino, cujus loco et nomine res seu negotio ... sua 
gerit et administrat.’’?3 According to this definition, 
a procurator to represent him. If a Bishop were pre- 
administers the affairs of another person, many in- 
stances are quoted to show how frequently procurators 
were used during the Middle Ages. ‘Thus the parish 
priest who could not attend the diocesan synod appointed 
a procurator to represent him. If a bishop were pre- 
vented from attending the provincial council he ap- 
pointed his procurator as his representative. A quota- 
tion from the Decretals of Pope Gregory IX shows that 


20 Paris, 1922: *2 Chap. IV. 
31 Chap. IT. 25 Fournier, Chap. V, p. 73. 


92. The Judiciary Department of the Diocesan Curia. 


Pope Alexander III addressed a rescript to the ‘‘pro- 
curatori et canonicis Sorranis.’’*+ This procurator, 
Fournier explains, is evidently, from the sense of the 
context, an administrator of the diocese of Sorro, whose 
bishop is dead. It is in this type of officer in ecclesias- 
tical procedure that Fournier sees the forerunner of the 
vicar general, who is a prominent officer of the diocesan 
euria according to the present legislation of the Code. 


Wernz and Fournier. Both Wernz and Fournier agree 
as to the main facts in the discussion. The archdeacon 
gradually lost his power and position as a diocesan of- 
ficial. The Council of Trent, though eulogizing the mer- 
its of the archdeacons, reduced their position from one 
of juridical importance to that of a mere titular dig- 
nitary in the episcopal family. Both authors agree as 
to the fact that a new office was created, to which office 
was gradually ceded the power formerly granted to the 
archdeacon. This officer of later appointment became 
the administrator of the diocese. The disagreement in 
the discussion seems to arise over the motive which ani- 
mated the change in the policy. Wernz follows the tra- 
ditional statement of historians, that the vicar general 
was created for the express purpose of dethroning the 
unruly archdeacons. Fournier terms this an undigni- 
fied and unworthy motive to attribute to the hierarchy in 
attempting to meet a crisis. Though Wernz’’ recog- 
nizes and quotes the work of Fournier he does not openly 
agree or disagree. Hence it seems that the question still 
remains one open for discussion for the writers and 
students of history, and as an open question we leave it. 

With this somewhat brief review of the history of the 
archdeacon and vicar general, some ideas are now in the 
mind concerning the juridical position of these officials 
in former centuries. The logical step now is to take up 
the consideration of the present status of the vicar gen- 


ROC Vik Soe Lido 
25 Wernz, 0. c., footnote, p. 673. 


The Judiciary Department of the Diocesan Curia, 25 


eral. A presentation of the Canons from the Code will 
give the proper aspect of this question. 


Tuer Vicar GENERAL. 


Can. 366. §1. ‘‘Quoties rectum diocesis regimen id exigat, 
constituendus est ab Episcopo Vicarius Generalis, qui ipsum 
potestate ordinaria in toto territorio adiuvet. 

S 2. Vicarius Generalis libere ab Episcopo designatur, qui 
eum potest ad nutum removere. 

§ 3. Unus tantum constituatur, nisi vel rituum diversitas vel 
amplitudo diocesis aliud exigat; sed, Vicario Generali absente 
vel impedito, Episcopus alium constituere potest qui eius vices 
suppleat.’’ 


There are three important points contained in the first 

paragraph of this Canon, which are: (1) the reason why 
a vicar general should be appointed; (2) nature of the 
power conferred on the vicar general; and (3) the per- 
son having the right to make the appointment. 
- The vicar general is a priest lawfully appointed by 
the bishop, empowered to exercise the episcopal juris- 
diction in any part of the diocese. He acts by authoriza- 
tion of the Bishop, so that the bishop is responsible for 
the legal acts of his vicar.?® 


Reason for the Appointment. The reason for the ap- 
pointment of this vicar is the ‘‘rectum regimen diocesis’’ 
the proper conduct of diocesan administration. The size 
of the diocese, in extent and numbers, the spiritual and 
material affairs demanding attention, and the activity of 
the bishops, are a few of the circumstances which will 
determine the question in regard to the need of a vicar 
general. 


Appointment to come from the Bishop. The bishop 
is the one who appoints the diocesan vicar general. An 
abbot or a prelate nulliws may also appoint a vicar gen- 


26 Vermeersch-Creusen, Tom. I, n. 435. 


94 The Judiciary Department of the Diocesan Curia. 


eral if one be necessary in the territory which they 
rule2* Vicars and Prefects Apostolic do not enjoy this 
right under the general law. Benedict XIV in the Con- 
stitution ‘“Quam sublimi,’’ 1745, granted to Vicars and 
Prefects Apostolic the privilege of appointing a vicar 
delegate.2? The competence of this officer is similar to 
the jurisdiction conferred on the vicar general by the 
Code.*§ 

The obligation of appointing a Vicar General is not 
absolute. The decision as to when it is necessary is left 
to the judgment of the bishop. Should a bishop, through 
negligence, fail to meet the need, the Holy See may inter- 
fere and appoint the vicar general. A vicar general so 
appointed is not removable ad nutum eprscopr.?” 


Power Conferred. The third point to be noted in this 
paragraph is the nature of the power conferred on the 
vicar general is ordinary power throughout the diocese. 
It is ordinary because it is conferred by the Code, the 
general law, and ‘‘vi officii,’’ that is, by reason of the 
appointment to the office. This ordinary jurisdiction 1s 
however a vicariate power since he acts in the name of 
the Ordinary. The Ordinary is responsible for the legal 
acts of the vicar.2° It is clearly stated in this paragraph 
(Can. 366, § 1) that the jurisdiction of the vicar general 
is coextensive with the territorial limits of the diocese. 

It is the Ordinary of the diocese who has the right to 
make the appointment. He is independent of all powers 
—hoth temporal and ecclesiastical. Neither the civil 
authorities nor the cathedral chapter nor the consultors, 
may lawfully interfere. The bishop may use his own 
discretion in considering the removal of the vicar gen- 
eral. He may be removed from office whenever the 
bishop finds it advisable to remove him. 


262 Can. 323, § 3. 

27 Const. “ Quam sublimi,” 1745. 

28 Wernz, 0. c., 636 (AAS. XII, 1920, p. 120) ; Ver.-Cr., p. 254. 
2@ Wernz, o. c., quoting Ferraris, n. 636. 

30 D’Angelo, 0. c., p. 10, n. 4. 


The Judiciary Department of the Diocesan Curia. 25 


The Number of Vicars General. The Code recognizes 
two possibilities, when either one existing, the bishop 
may appoint more than one vicar general. In the year 
1742 Pope Benedict XIV had conceded the privilege to 
the bishops to have more than one vicar general in 
those dioceses where there were a considerable number 
of the faithful of different rites, for example, Greeks, 
Ruthenians and Latins in the same diocese.*! This point 
is mentioned in the Code, ‘‘rituum diversitas,’’ hence it 
‘has the force of general law.*? The second possibility is 
the consideration of the size of the diocese. A densely 
populated diocese or a diocese covering an extensive ter- 
ritory may be sufficient reason for the appointment of 
more than one vicar general.** 


Requisite Qualifications. The vicar general of the 
diocese should be a man chosen from the ranks of the 
secular clergy. He should be at least thirty years old. 
The Code requires that the appointee be one who has the 
degree of doctor or licentiate in theology and canon law, 
or at least one who is proficient in these branches. His 
mental and moral qualifications should be the highest, 
and his ability and prudence should be evident from his 
past activity in the diocese.*+* 

If the Holy See appoints a religious community to 
take charge of a diocese, the vicar general of that dio- 
cese may be a priest of that community.®® The mere fact 
that a religious is made the head of a diocese does not 
indicate that the community has been appointed over the 
diocese. If the community is to be in charge of the dio- 
cese the appointment will be made to the community as 
such. No example of this is to be found in our own 
country. 

Paragraph three of Canon 367 enumerates those who 
are excluded from the office of vicar general. 


1. The Canonical penitentiary. 
31 Htst Pastoralis, May 28, 1742. 


32 Can. 366, § 3. 14 Cait: 307429.1, 0 919s 
33 Can. 366, § 3. 85 Can. 367,: $2. 


96 The Judiciary Department of the Diocesan Curia. 


9 Blood relations of the Ordinary in the first degree 
or the second mixed with the first. 

3. Parish priests and those engaged in the cura ani- 
marum. 


The Ordinary is forbidden to appoint blood relations 
in the degree mentioned above, lest his motives be ques- 
tioned. He may not appoint a brother, neither his 
nephew. The penitentiary and the parish priest and 
those entrusted with the care of souls are excluded lest 
+n the external forum they be forced to deal with subjects 
over whom they have power in the internal forum. The 
jurisdiction of the vicar general is in externo and he 
should never be suspected of acting in external forum on 
matters submitted to him in the confessional. 


Power of the Vicar General. The vicar general, ‘‘ vi- 
officii,’’ by reason of appointment to the office, possesses 
ordinary proper jurisdiction in every part of the dio- 
cese2° The right to exercise this jurisdiction begins 
when he takes possession of the office.*° The jurisdiction 
extends to both spiritual and temporal affairs im the 
diocese. 

The two exceptions in Canon 368 limit the power of 
the vicar general. He has no jurisdiction in those mat- 
ters which the bishop may reserve to himself.** How far 
may the bishop go in limiting the power of the vicar 
general by reservations? D’Angelo is of the opinion 
that the bishop may not go to such extremes in limiting 
the power of the vicar general as to change the nature 
of the universality of jurisdiction. This universality of 
power as to persons and territory, is granted to the vicar 
eeneral by the general law according to the Canons of 
the Code. Should the reservations be too numerous and 
the vicar ‘general be compelled to seek special conces- 
sions from the bishop, the character of a vicar general 


36 Can. 368, § 1; Can. 197; Can. 198. 
87 Can. 1095, § 1, n. 1. 
38 Can. 368, § 1. 


The 


would 


Judiciary Department of the Diocesan Curia. 27 


be destroyed and instead there would be merely a 


delegated agent.®® 


Limitation of Power. The jurisdiction of the vicar 
general is limited when the General law, the Code, re- 


quires 


a special commission from the bishop for certain 


functions. The acts which may not be executed by a 
vicar general except by special commissions are: 


(8) 


The institution of ecclesiastical offices.*° 

The calling, or presiding over a diocesan synod.*! 
The appointing of pastors.*” 

The removal of assistants, ‘‘vicars’’ in parishes.** 
The organization of pious associations.*4 

The reservation of sins.*® 

The concession of dismissorial letters.*® 

The grant of permission for a ‘‘ matrimonium 


conscientiae.’’ 74 


(9) 

(10) 
(11) 
(12) 
(13) 
(14) 
(15) 
(16) 
(17) 


The consecration of a church or place of worship.*® 
The grant of permission for building a church.*® 
The authentication of relics.*° 
The regulation of the amount of.a stipend.*! 
The establishment of a benefice.** 

The union or conferring of benefices.*3 

The grant of a canonical institution.*4 

The permission for the exchange of benefices.°° 
The fixing (‘‘statuere’’) of ecclesiastical punish- 


ments.°® 


(18) 


The vicar general is excluded from the whole of 


the second part of Book Four of the Code.** 


8° D’Angelo, o. c., p. 15. 4° Can. 1162, § 1. 


4° Cam. 
*1 Can. 
42 Can. 
43 Can. 
46 Can, 
45 Can. 
4® Can. 
47 Can. 
48 Can. 


152. $9 Can 1283.) 82. 

357, $ 1. Pt Cans. a0). 8 a. 

455, § 1. 5°? Can. 1414, § 3. 

477, $1. 58 Can. 1423, § 1; Can. 1432, § 2. 
686, § 4. 54 Can. 1466, § 2. 

893, § 1. 55 Can. 1487, § 1. 

958, § 1; Can. 959. 56 Can. 2220, § 2. 

1104. 57 Can. 2002. 

1155, § 1. 


98 The Judiciary Department of the Diocesan Cura. 


(19) The absolution in foro eaterno of heretics, apos- 
tates, etce., from excommunication.”® 


The Mandatum Speciale. There is a dispute among 
canonists as to the time when the ‘‘mandatum speciale,”’ 
the special commission which the Code requires, should 
be given. Should the bishop delegate in each particular 
case when the Code so requires, for example, at the time 
of the consecration of a particular church! Can this 
concession be made in a more general way, say at the 
time the vicar general is appointed—giving him jyuris- 
diction for all matters—‘‘etiam quoad omnia quae spe- 
ciale mandatum requirunt’’—? Oietti seems to favor a 
general delegation covering all cases. He styles it a 
‘“mandatum speciale permanens.”’ °° Badii does not favor 
the concession by a general formula to cover any and all 
cases which may arise in the future.°° Vermeersch holds 
that the ‘‘mandatum speciale’? may be eranted by way 
of a general delegation. He says: ‘‘Hpiscopus potest 
ipsis litteris, quibus vicarium generalem, constituit, ad- 
dere se eum deputare—‘‘ etiam ad ommia quae speciale 
mandatum requirunt.’’ This seems to be a safe and 
satisfactory statement on the question. The preceding 
paragraphs contain the present legislation as to what 
functions require this special delegation.®* 

Canon 2002 limits the power of the vicar eeneral by 
forbidding him to act in the cause of a beatification or 
a canonization of a servant of God. This canon states 
that the vicar general is not to be understood in that 
section of the Code which deals with processes and per- 
sons involved in beatifications, etc., when the name Ordi- 
nary occurs. This, of course, is an express exception to 
Canon 198. 

The vicar general is declared ineligible for appoint- 
ment to office on the committees selected by the Bishop 


58 Can. 2314, § 2. 

5° Quoted by D’Angelo, o. c., p. 17. 

6° Badii, Inst. I. Can., p. 220. 

61 Vermeersch-Creusen, 0. c., Tom. I, n. 436. 


The Judiciary Department of the Diocesan Curia. 29 


for the consideration of disciplinary or administrative 
questions in the diocese or seminary.” 

The vicar general may execute Apostolic rescripts 
which may have been sent to the bishop of the diocese 
if there be no restriction to the contrary. The common 
or habitual faculties which the Holy See grants to the 
bishop, belong to the vicar general also.®* 

The vicar general, being the vicar of the Ordinary of 
the diocese, must keep in mind the principle that he acts 
in the name of the bishop. Hence the bishop should be 
consulted on the important acts of the curia which are 
directed toward the discipline of the clergy or the laity.®* 
‘‘Let him beware,’’ warns the Code, ‘‘lest he use his 
powers contrary to the mind and will of the bishop. 
having due regard for the prescriptions of Canon 44.”’ 
There is no appeal from the vicar general to the 
bishop.® A faculty denied by the vicar general may 
be conceded by the bishop, the fact being mentioned 
that the vicar general had refused to grant petition.®® 


Right to Recognition as Prelate. Canon 370, §1: 


‘‘Praesente etiam episcopo, vicarius generalis publice priva- 
timque praecedentiae ius habet super omnibus diocesis clericis, 
non exclusis dignitatibus et canonicis ecclesiae cathedralis, etiam 
in choro et actibus et capitularibus, nisi clericus charactere epis- 
copoli praefulgeat, et vicarius generalis eodem careat. 


§ 2. ‘*Si vicarius generalis sit episcopus, omnia honorifica 
privilegia episcoporum titularium obtinet; secus durante munere 
habet tantum privilegia et insignia Protonotarii apostolici titu- 


In the first paragraph of this canon the precedence of 
the vicar general is declared. In the presence of the 
bishop, the vicar general takes precedence over all dio- 
cesan clerics, including dignitaries, prelates and the 
canons of the cathedral chapter. Should there be a cleric 


62 Can. 1359, § 1 and § 2. 65 Ver.-Creus., 0. c., n. 438. 
68 Can. 66; Can. 198, §1. 86 Can. 399; Can. 44. 
64 Can. 369. 


30 The Judiciary Department of the Diocesan Curia. 


in the diocese raised to the episcopate, he alone will take 
precedence over the vicar general if the viear be not a 
member of the episcopate. 

It is now the general law that if the vicar be a bishop, 
he may avail himself of all the honorary privileges of a 
titular bishop. Such would be the case if the auxiliary 
bishop of the diocese be the vicar general. If the vicar 
be not a bishop, the Code prescribes that he is to have 
all the privileges and insignia of a titular prothonotary 
apostolic prelate during the time he holds this office in 
the diocesan curia. The last clause of the second para- 
eraph of this canon is based on the Motu Proprio of 
Pope Pius X, ‘‘Inter multiplices,’’ Feb. 21, 1900. 


The Expiration of this Office. Canon 371: 

‘‘Expirat vicarii generalis iurisdictio per ipsius renuntiation- 
em ad normam can. 183-191, aut revocationem ei ab Episcopo 
intimatam, aut sedis episcopalis vacationem; suspenditur vero 
suspensa episcopali iurisdictione.”’ 


In this canon the Code defines the manner in which the 
office of vicar general expires or is suspended. Some 
of these follow the general law on loss of ecclesiatical 
office; the others are peculiar to the office of the vicar 
general. 


1. The ordinary and more common way by which an 
ecclesiastical office ceases is by resignation.®& The 
Canons referred to to which govern the process of resig- 
nation of an ecclesiastical office state that the resignation 
should be for a just reason,® there being no special pro- 
hibition preventing the resignation. The resignation 
must be a free act, not the result of fear, threat or vio- 
lence.?° The legal formalities are to be observed, hence 
either in writing, or if oral, before two witnesses.7* Fin- 


ally, the resignation must be accepted by the lawful 
superior.”” 


87 P)’Angelo, 0. ¢., p. 23. 7 Can. 185. 
68 Can. 183. 71 Can. 186. 
6° Can. 184. 72 Can. 187. 


The Judiciary Department of the Diocesan Curia. 31 


2. This office may cease by revocation. This revoca- 
tion or recall must come from the Ordinary. The vicar 
is to be duly notified of the will of his superior in re- 
calling the appointment. 

3. The death, removal or the resignation of the bishop 
signifies the cessation of the office of the vicar general 
of that diocese. From this it follows that the jurisdic- 
tion of the vicar general is dependent upon the con- 
tinued and uninterrupted jurisdiction of the bishop of 
the diocese.” 

Canon 430 considers the case of a bishop being re- 
moved from one diocese to another. Even though he 
were to remain in the diocese ‘‘a quo’’ as Apostolic Ad- 
ministrator of that diocese during the allotted space of 
time of four months, the vicar general in the diocese 
‘fa quo’’ would cease to function on the day of the noti- 
fication of the transfer.™4 


73 D’Angelo, 0. c., p. 26. 
"* Cane 430.0 §'2.\'§ 3, now], 


29 The Judiciary Department of the Diocesan Curia. 


CHAPTER III. 


THe OFfFICIALIS. 


The Judge. The Code states that it is the duty of 
every Bishop to appoint a judge as one of the members 
of the diocesan curia. This judge is called the officialis 
and the method of appointment, competency, qualifica- 
tion, and other related questions are outlined in Canon 
1573. A judge in the legal sense is a judicial officer 
appointed or elected to preside in the courts of law and 
to decide legal questions duly brought before him. The 
judge presides over the judiciary department, and it is 
through this department that laws are administered.* 


History. In ancient Roman law there were two phases 
observed in judicial procedure. The contention, or crime 
was first brought to the notice of the Roman magistrate 
or ruler. He did not investigate the facts of the case but 
decided it to be a case within the scope of the law and 
appointed the judge, giving him the necessary instruc- 
tions. The process which was conducted by the magis- 
trate was known as ‘‘in jure,’’ or in the law. The in- 
vestigation proper before the judge was termed ‘‘in ju- 
dicio,’’ or the judgment of the cause.” 


Pretor—Judex in Roman Law. The Roman pretor 
was a civil magistrate who had charge of the administra- 
tion of justice. The first pretor was appointed in the 
year 366 B. C.® 

According to Livy the chief functions of the pretor- 
ship were ‘‘jus in urbe dicere,’’ to interpret the law ofh- 
cially, at times they commanded the armies of the state, 
and even supplied in the absence of the consuls within 
the limits of the city.’ 


1 Funk and Wagnalls, Diet.—‘ judge ”—* judiciary.” 

2 Smith, Dictionary of Greek Antiquities, v, “ judex.” 

* Smith, o. c., Ledlie, The Institutes by Sohm., par. 57. 
4 Livy, VI, 42. 

e Smith, /o. ¢. 


The Judiciary Department of the Diocesan Curia. 33 


Another pretor, the Pretor Peregrinus, was appointed 
in the year 246 B. C. The duty of this officer was to 
administer justice in disputed matters between the pere- 
erini, the travellers in Rome, or between peregrini and 
Roman citizens. The other pretor was then known as 
the Pretor Urbanus and his duties were within the city 
of Rome. 

The pretors existed in varying numbers in the period 
of Justinian Law, in the latter days of the Empire and 
continued to exercise jurisdiction in judicial matters.’ 


Legislative and Judicial Power of Apostolic Times. 
Christ, the Divine Founder of the Church, appointed His 
Chief Executive, St. Peter. The one appointed by Christ 
to be the representative head of the Church, received 
his commission before the day of the Ascension. This 
commission carried with it all the power necessary for 
the conduct of the affairs of the Church.’ St. John is 
the witness of the conferring of this commission, which 
was promised according to St. Matthew.? 

This commission conferred the power to rule in the 
Church. The historical record of the early years of the 
Church’s activity demonstrates the fact that the Apos- 
tles acted in the capacity of rulers. St. Peter asserts 
his position as a leader and ruler in the Church at the 
Council of Jerusalem.’® St. Paul in a discourse to the 
clergy at Ephesus, reminds them that they have been 
delegated to rule in the Church of God and that as bish- 
ops they are responsible for the souls committed to their 
charge.4! In the Epistle to the Corinthians, St. Paul 
shows no timidity in making decisive statements con- 
cerning moral and religious practices. He assures the 
Christians at Corinth that he will set things in order 
when he makes his next visitation to the church at Cor- 
inth.'* In the Epistle to Timothy, St. Paul gives some 


® Smith, o. e. 46 A Cha XV, 8: 
eee ay Las3h ahd Lae $4 ACER RON 2S; 
8 St. John, XXI, 15. alt PER OL, a, ie ahs fins eB 


° St. Matthew, XVI, 17-19. 
3 


94 The Judiciary Department of the Diocesan Curia. 


direct regulations concerning the conduct of the mem- 
bers of the Hphesian congregation. He not only makes 
use of direct legislative power, but also delegates the 
enforcing of his regulations to the Bishop of Ephesus, 
St. Timothy.*” ; 

Unless the legislative power be supported and com- 
plemented by the judicial power, the former is of little 
avail. The executive without the judiciary 1s a weak and 
ineffective power. ‘The laws are but written statements, 
intrinsically so many dead letters, and cannot enforce 
themselves. This is true of every society, it is true of 
an ecclesiastical society ‘such as the Church. The wis- 
dom of Christ foresaw and made provision for this need. 
He conferred on the Apostles the right to judge the 
actions of the members of the Church.™ He empowered 
them to punish offenders and to exclude unrepentant 
offenders from the society of the Church.’” 

The Apostles made use of this power. The evidence of 
their conscious knowledge of it is found in their teach- 
ings and writings. St. Paul shows no hesitancy in de- 
nouncing the crime of incest reported to him from Cor- 
inth. The Apostle ordered the incestuous one to be ex- 
communicated from the congregation lest his shameless 
conduct be a source of contamination to others.*® 

In another letter St. Paul instructs Timothy in the 
judicial process to be observed by a Bishop who officially 
receives an accusation against a cleric.” 


The Councils. Other facts of history, which stand as 
evidence of the use of the judicial power in the Church, 
are the great Councils. An Ecumenical Council is an 
assemblage of the bishops of the world, who, in union 
with the Supreme Head of the Church, speak authori- 
tatively on questions of doctrine and discipline. Arius 
and Arian heresy were condemned in the Council of Nice 
in the year 325. Nestorius and his heretical teachings 


137 Tim., V, 19. 16 J Cor., V, 3, 12, 13. 
14 Wernz, o. c., Tom. V, n. 80. 177 Tim., V, 19. 
15 §t, Matthew, XVIII, 14-18. 





The Judiciary Department of the Diocesan Curia. 395 


were condemned in the year 431. The Council of Chal- 
cedon was convened in the year 451 for the purpose of 
examining the strange teachings of Eutyches. Both he 
and his doctrines were condemned by the Council. The 
Council of Trent and the Council of the Vatican, famous 
for the great reforms which were accomplished in their 
sessions, are well known, being nearer the present period 
of history. 


The Office of Judge in Justinian and Canon Law. The 
foregoing considerations establish the fact that the judi- 
ciary power has always been in evidence in the Church. 
The present dissertation is also concerned about the ori- 
gin of the particular officer in whom this power is vested, 
that is the officialis mentioned in Canon 1573. It seems 
that his prototype can be traced to the pretor of Roman 
Law. The Catholic Church was the mistress of the 
world, the one secure organization in the times of the 
barbarian invasions. At this time, about the eleventh 
century, Roman Law was fast losing its force because of 
the disturbances in political affairs and also because of 
the legal system which the barbarians brought with them 
—the Jus Barbaricum. About this same time Canon 
Law began to be organized on a scientific basis, and codi- 
fied. A concrete example of this is the Decretum of 
Gratian. The Church, the clergy adhered to the method 
and principles of Roman Law and Gratian uses legal 
terms when speaking of property, rights, ete., identical 
with those found in the Corpus Iuris Civilis of Justinian. 
There is also a great similarity in the titles and offices 
of legal personages. 

To this may be added the opinion of Fournier.!® This 
canonist holds that the position of the judge in the dio- 
cesan curia was firmly established in the diocesan curia 
in the first half of the twelfth century. His competency 
to hear cause within the jurisdiction of the bishop is 
affirmed by Pope Innocent IV in the constitution ‘‘Ro- 


18 Fournier, 0. ¢., p. 67. 


26 The Judiciary Department of the Diocesan Curia. 


mana ecclesia.’’ It is the opinion of Fournier that the 
officialis of Canon Law is an ‘nstitution which was first 
known in the Chureh in France. From there it spread 
to the other countries of the Continent but it was in 
France that the officialis acquired his complete develop- 
ment. In proof of this statement he cites the title 
‘‘ Officio Vicarii ’’ of the Sextus of Boniface VIII.” 


The Officialis in the Code. Canon 1573, Sle 


‘‘Quilibet Episcopus tenetur officialem eligere cum potestate 
ordinaria iudicandi, a Vicario Generali distinctum, nisi parvitas 
diocesis aut paucitas negotiorum suadeat hoc officium ipsi Vica- 
rio Generali committi.’’ 


In this, the first paragraph of the Canon, the office of 
the diocesan judge ‘‘officialis”’ is established by the gen- 
eral law of the Church. By whom is he appointed? The 
officialis is appointed by the bishop of the diocese or the 
Ordinary of the locality. Under certain circumstances 
the appointment may be made by one not a consecrated 
bishop, e. g., the vicar capitular.?° Both the abbot and 
the prelate nullius are privileged to appoint an official, 
since by Canon 215 they are to. be understood as ‘ ordi- 
narius loci,’’ ordinaries of a locality. This Canon must 
be read in the light of the foregoing Canon—1572. That 
Ganon defines the judicial power of the ‘‘ordinarius 
loci’? who may use this power in person or delegate it to 
others within his diocese or territory. 

Is the bishop bound to appoint an official. The Canon 
uses the word ‘‘tenetur’’—he is held to do so. The Code 
seems to anticipate the possibility of there being little 
need for the services of an official in certain localities. 
If such be the case in any diocese, then the bishop may 
appoint the vicar general to act in the capacity of judge 
also. The circumstances which justify this action on the 
part of the bishop are when the diocese is small, ‘‘ par- 


19 Fournier, p. 70, 71; C. I. de off. v. I, 13 in VI. 
20 Can. 1573, § 7. 


The Judiciary Department of the Diocesan Curia. 37 


vitas,’’?1 or the rare occurrence of judicial trials in the 
diocese, ‘‘paucitas negotiorum.’’ ?? Hence it would seem 
to be the mind of the law that an official should be ap- 
pointed in every diocese. 

Noval makes the comment that it is wisely ordained 
that the judge:in the diocese be a person other than the 
bishop. The bishop is the pastor of the diocese and there 
are so many duties which demand his time and attention 
that the settlement of disputes, etc., may well be left to 
the officialis. Moreover, the rendering of judgments in 
either contentious or criminal cases may be more diffi- 
cult for the pastor and ruler of the diocese than for 
another who is but a member of the curia.?* 

The law specifies that the office of judge is to be dis- 
tinct from that of the vicar general. It is the opinion 
of Pellegrini that before the promulgation of the Code 
the officialis and the vicar general were one and the 
same, at least the titles were used indiscriminately." 

Fournier is of the opinion that the present legislation 
which makes the two offices separate and distinct is but 
a return to an ancient regulation. It is his opinion that 
the condition in Italy which allowed the union of official 
and vicar general into one and the same appointment 
was the result of a special concession or legislation. He 
maintains that in France the distinction between these 
two officers in the curia was always recognized, both in 
appointments and in spheres of action.*® Whatever the 
former discipline may have been, the present and future 
policy is governed by the Code. The officialis is an office 
in the diocesan curia is to be ‘‘a vieario generali dis- 
tinctum.”’ 


Nature and Extent of the Power of the Officialis: 


‘‘Officialis unum constituit tribunal eum Episcopo loci; sed 
nequit iudicare causas quas Episcopus sibi reservat.’’ 2° 


4} Can, 1673;" $01. 22 Can. 1573, § 1. #8 Noval; 0. o:,.11-113. 
24 Pellegrini, Praxis Vicariorum P. 1, S. 1, subs., IT, I. 

25 Fournier, 0. c., l. ec. p. 8. 

26 Can. 1573, p. 2. 


98. The Judiciary Department of the Diocesan Curia. 


The tribunal or court of the official is to be considered 
as one and the same with that of the bishop, that is, of 
the same grade. This does not imply that the officialis 
is equal in person to the bishop. The officialis derives 
his jurisdiction from the bishop. The bishop has the 
power to limit the jurisdiction of the official by reserva- 
tions of certain causes. But since the tribunal of the 
officialis is a court of the first instance, and since his 
jurisdiction extends to all persons and things within the 
diocese, it is said to be ‘‘unum tribunal cum Episcopo 
loci.”’ 

The bishop may limit the jurisdiction of the officialis 
by reserving or withholding certain causes from the ju- 
risdiction of the court of the officialis. Noval thinks that 
these reservations are not to be so numerous as to change 
the character of the power of the officialis from that of 
ordinary to merely delegated power. Should it be neces- 
sary to apply to the bishop for faculties to judge in the 
majority of causes, causes reserved to the bishop, he 
would be acting as a delegated official rather than as one 
with continued and ordinary power.** 


The Number of Officials in a Diocese: 


‘‘Officiali dari possunt adiutores, quibus nomen est vice-offi- 
cialium.’’ 7° 


It follows logically from the term ‘‘officialis’’ in the 
first paragraph of this canon that there is to be but one 
such office in the curia. Should the need arise, because 
of the many cases coming in for hearing, the officialis is 
to be given assistants in the work. The paragraph 
quoted above justifies the appointment of these assist- 
ants and gives them the title of ‘‘vice-officials.”’ They 
are appointed by the bishop, their work will be in the 
judiciary department of the diocese under the presidency 
of the official and D’Angelo is inclined to think that their 
power is ordinary, just as the power of the officialis.?° 


27 Noval, o. c., n. 114; D’Angelo, S. II, Cl, p. 2. 
28 Can. 1573, p. 3. 2° D’Angelo, o. ¢., S. II, C. ka 3: 


sy) 


The Judiciary Department of the Diocesan Curia. 39 


Noval writes that the vice-official ‘‘aequiparantur offici- 
ali in omnibus,’’ as is clear from §4 and § 5 (1573), and 
Canon 1577, § 2., C. 1578. 


Qualifications. The Code requires that both the off- 
cial and the vice-officials be priests.2° Quoting Canon 
626, Noval holds that they must be secular priests. The 
Canon cited reads as follows: 


‘‘Religiosus nequit ...ad.. . officia promoveri, quae cum 
statu religioso componi non possint.’’ 


It has already been stated that a religious can not be 
appointed vicar general unless the diocese has been com- 
mitted to the care of his religious community.*! <A reli- 
gious may not act as procurator or advocate in tribunals 
outside of the religious community.®* Neither may a 
religious fill the office of notary in the cause of the bea- 
tification of Saints.** Hence it is logical to argue that a 
religious may not be appointed official or vice-official. 
The reason for this prohibition is clearly stated in Canon 
626, that is, lest the duties of such diocesan appointments 
interfere with the life and observance of the rule of the 
religious community. 

Other requisites are that the names of the appointees 
be above reproach. It is also required that the official 
and vice-officials be doctors in Canon Law or at. least 
conversant with the principles of the Code. The age 
requirement for these offices is thirty years.*4 


Removal. The official and likewise the vice-officials 
may be removed from office whenever the bishop deems 
their removal necessary. Paragraph five states, ‘‘sunt 
amovibiles ad nutum Hpiscopi.’? The bishop may recall 
these appointments for any reasonable cause. However, 
he is under no obligation to discuss the cause, much less 


8° Can. 1575, § 4. 33 Can. 2014, 
51 Can. 367. *4 Can. 1573, § 4. 
82 Can. 1657. 


40 The Judiciary Department of the Diocesan Curia. 


state his reasons to those whom he removes from the 
office.®° 

The official continues in office even though the epis- 
copal see be vacated. He cannot be removed from office 
by the vicar capitular °° except for a crime for which he 
has been convicted through judicial procedure.” When 
the newly appointed bishop takes charge of the see, the 
official must look to him for a confirmation of his posi- 
tion in the curia. It is not certain that this confirmation 
is necessary for the validity of the acts of the officialis 
for this condition is not stated in the Canon. 

When the one person is both vicar general and offi- 
cial sede vacante the office of vicar general ceases ipso 
facto, the office of officialis does not cease.*® 

If the See be vacated and the officialis be chosen vicar 
capitular, he ceases to be officialis when he accepts the 
new dignity. Having accepted, he may then appoint a 
new officialis.*® 


QyNoODAL AND PROSYNODAL JUDGES. 


Canon 1574. §1. In qualibet dioecesi presbyteri probatae 
vitae et in iure canonico periti, etsi extradioecesani, non plures 
quam duodecim eligantur ut potestate ab Episcopo delegata in 
litibus iudicandis partem habeant; quibus nomen esto iudicum 
synodalium aut prosynodalium si extra Synodum constituuntur. 

§2. Quod ad eorum electionem, substitutionem, cessationem 
aut remotionem a munere attinet, serventur praescripta Canon 
385-388. 

§ 3. Nomine iudicum synodalium in iure veniunt quoque 
iudices prosynodales. . 


History. Itis the opinion of Canonists that the origin 
of these auxiliary judges, prosynodal judges, in the dio- 
cegan curia may be traced to an enactment of the Holy 
See in the latter part of the thirteenth century.*° In cer- 
tain causes it was necessary that the Holy See commis- 


35 Noval, 0. c., n. 116. #6 Can. 1610, \D.Gs 
36 Can. 1573, p. 6.; Can. 436. $° Can. 1673, ps 1: 
87 Noval, o. ¢c., n. 116. 4°-Noval,) 0, ¢.,)a1. 217% 


The Judiciary Department of the Diocesan Curia. 41 


sion ecclesiastical persons to execute a mandate, rescript, 
ete., because of the remote location of the party or cause 
concerned. Boniface VIII found it advisable to pass 
certain regulations lest unfit persons be appointed to 
earry out these important mandates and thus be the oc- 
easion of a particular church or person to suffer injus- 
tice as a result of unfitness or inefficiency of the judge. 
In the bull of Boniface VIII, ‘‘Statuimus,’’ the Pontiff 
ordered: 


‘‘ut nullis nisi dignitate praeditis, aut personatum obtinentibus, 
seu ecclesiarum Cathedralium Canonicus, causae auctoritate lit- 
terarum Apostolicae Sedis, vel Legatorum eius de cetero non 
commitantur; nec audiantur alibi quam in civitatibus et locis 
insignibus ubi commode possit copia peritorum haberi.’’ +1 


The main provisions in the foregoing quotation are 
that persons worthy and capable of negotiating affairs 
in the name of the Holy See be appointed. If the matter 
be judicial procedure, the cause must be heard in a place 
of some importance where the services of skilled jurists, 
‘‘neritorum,’’ may be had. It is evident that these pro- 
visions were motivated by a high regard for justice. 

This consideration received the attention of the Fa- 
thers in the Council of Trent. In the twenty-fifth ses- 
sembled in Provincial Synods recall the statute of Pope 
Boniface VIII, ‘‘Statuimus’’ and appoint synodal 
sion ‘‘ De Reformatione,’’ it was decreed that bishops as- 
judges. ‘‘. .. statuit in singulis Conciliis Provinciali- 
bus, aut diocesanis aliquot personas, quae qualitates 
habeant, iuxta constitutionem Bonifatii VIII, quae in- 
cipit Statuimus: et alioquin ad id aptas designari, ut 
praeter Ordinarios locorum, iis etiam posthas, causae 
ecclesiasticae, ac spirituales, et ad forum ecclesiasticum 
pertinentes, in partibus relegandae commitantur. Ht si 
aliquem illorum interim ex designatis mori contigerit, 
substituat ordinarius loci cum consilio eapituli alium, 
ete.’’ 42 


1 Cap. 11, I, II, in VI.° 42 Sess. XXV, De ref., c. 10. 


42 The Judiciary Department of the Diocesan Curia. 


In substance this is the provision found in the Canon 
1574 of the Code. As will be shown, the legislation of 
the Code on this point is more specific than former legis- 
lation in giving attention to method of appointment, the 
number, the qualifications and the field of action of these 
auxiliary judges in our present ecclesiastical judicial 
procedure. Today the chief function of the ‘‘synodal- 
judge,’’ as the Code terms them, is to form a collegiate 
tribunal whose presiding judge may be either the bishop 
of the diocese or the officialis.** 

In Canon 1574—already quoted, the general law for 
the Universal Church is stated relative to the office and 
person of the synodal judges. The office and function of 
a judge in ecclesiastical affairs has been stated in a pre- 
vious chapter.** 


Defined. A synodal judge is a priest selected by the 
Bishop at the time of the diocesan synod to act when so 
delegated at any future time ina judicial capacity. The 
diocesan synod referred to in this canon is that delibera- 
tive assembly held in the diocese in accord with the law 
of the Church, as stated in Canon 356. If a priest be 
called to this appointment at a, time other than during 
the sessions of the diocesan synod, he is to be known, 
according to the Code, is a pro-synodal judge. The bish- 
op may appoint as many as twelve, or fewer if he wishes. 


Qualifications. The Code requires, that for this office 
in the curia, the candidate be a priest. He may be a 
priest from another diocese, and as in the offices in the 
diocesan curia previously considered, he is to be a secu- 
lar priest. Quite naturally the law requires that he who 
is called to act in a legal capacity settling the contentions 
and strife of others be a man of high moral qualifications 
and blameless in his life. It is not necessary that he 
have attained a degree in Canon Law, but the synodal 
judge must have some knowledge of the contents of the 


48 Can. 1576; Noval, o. ¢., n. 117. 
44 Cf. “ Officialis,” supra. 












I 
] 


The Judiciary Department of the Diocesan Curia. 48 


Code, if he is to act intelligently in matters of legal pro- 
cedure.*° 


Election, Substitution, Removal of Synodal Judges. 
The process of election, substitution and removal from 
office of the synodal judges is governed by those pre- 
scriptions of the Code found in Canons 385, 386, 387, 
and. 388. 

Therein it is provided that synodal judges be ap- 
pointed at the time of the diocesan synod. The names 
are proposed by the bishop for the approval of those 
assembled in council.4® Vacancies occurring in the ranks 
of the judges, caused by death, removal or other circum- 
stances may be supplied in the years intervening the con- 
vocation of synods. Judges appointed at times other 
than the regular synod are known as ‘‘pro-synodal’”’ 
judges. In making such appointments the bishop is 
directed to take counsel with the Cathedral Chapter.** 
In this country the bishop will take counsel with the dio- 
cesan consultors. (Can. 423.) 


Cessation of Office. The terms of tenure of office for 
synodal judges is a period of ten years. In the case of 
one appointed between synods, his office ceases with the 
convocation of the next diocesan synod.*® The term of 
office for a substitute will be determined by the remain- 
ing term of the one whose vacancy he is filling.4? The 
bishop, for any serious reason, May remove any one of 
these men from office. Before such action, however, he 
will present the matter for the consideration and counsel 
of the Cathedral Chapter,®° or as stated before, of the 


- diocesan consultors. 


Paragraph three of Canon 1575 legislates that there 


is no distinction in authority or importance between a 


synodal and pro-synodal judge. Whenever the former 
term is used in the wording of a Canon, the latter is to be 


understood as well. 


45 Can. 1574, § 1. *8 Can. 387, § 1. 
46 Can. 385. *° Can. 387, § 2. 
*7 Can. 105, § 1.. 5° Can. 388. 


44 The Judiciary Department of the Diocesan Curna. 


Compared with Officialis. If one would compare the 
auxiliary or synodal judges which have just been con- 
sidered with that of the Officialis and vice-officials it will 
be noted that they differ in manner of appointment, in 
the nature of the jurisdiction and stability of office. The 
officialis is appointed independently of the synod; the 
appointment of the synodal judge is approved by the 
synod. The jurisdiction of the officialis is ordinary, ex- 
tending to all persons and causes coming within the com- 
petence of the Ordinary, excepting reservations; the 
jurisdiction of the synodal judge is delegated—for a par- 
ticular time, place and cause. There is no time limit to 
the tenure of office of the officialis; the synodal judge 
loses his appointment at the end of ten years. 


Field of Action for Synodal Judges. The Code seems 
to indicate the purpose and duties of the synodal judges 
in the phrase, ‘‘eligantur ut potestate ab Hpiscopo dele- 
eata in litibus iudicandis partem habeant.’’ ®t The sy- 


nodal judges are chosen, and in virtue of the jurisdiction — 


which they receive from the bishop, they may assist in 
the settlement of disputes in the ecclesiastical courts. 
By some authors the synodal judge is called an auxiliary 
judge. This expresses the same idea. 

The Code indicates another function to which the 
synodal judge may be called—that of assessor: 


“‘Unicus iudex in quolibet iudicio duos assessores consulenten 
sibi adsciscere potest; quos tamen ex iudicibus synodalibus eli- 
gere debet.’’ ©? 


Having considered the duty of synodal judge when act- 
ing as auxiliary, or associate judge, the latter duty of 
assessors will then be considered. 


Collegiate Tribunals. A cause brought before an ec- 
clesiastical court may be adjudged by one judge or by 
several judges. If the cause be presented in the courts 


51 Can. 1574, § 1; Noval, o. c., n. 122; D’Angelo, 0. ¢., p. 25. 
52 Can. 1575. : 


The Judiciary Department of the Diocesan Curia, 45 


where several judges are to render decision it is said to 
be tried before a collegiate tribunal. A collegiate tri- 
bunal may be composed of three, five or more judges. 
The legal procedure before such a tribunal will always 
proceed according to the vote of the majority and the 
vote of the majority will determine the decision or judg- 
ment of the court. 

The collegiate tribunal is found in Roman procedure. 
According to Smith,°*? ‘‘The judges were chosen by lot 
out of those who were qualified to act. Both the plaintiff 
and the accused had the privilege of rejecting or challeng- 
ing such judges as they did not like. The judges appointed 
according to the provisions of the Lex Licinia de Ambitu, 
B. C. 55, were called ‘edititii’.. . . The judges voted by 
ballot and a majority determined the acquittal or con- 
demnation of the accused. If the votes were equal, there 
was an acquittal. Hach judge was provided with three 
tablets on one of which was marked A, Absolvo; on a 
second, C, Condemno; on a third, N. L., Non Liquet. The 
judges voted by placing one of these tablets in the urn, 
which was then examined for the purpose of ascertaining 
the votes. It was the duty of the magistrates to pro- 
nounce the sentence of the judges; in case of condemna- 
tion they were to adjudge the legal penalty; of acquittal, 
to declare the accused acquitted; and of doubt to declare 
that the matter must be further invesigated (amplius 
cognoscendum ).’’ 


Collegiate Tribunal Required by the Code. There are 
ecclesiastical causes in a diocese which demand judgment 
by several judges, or a collegiate tribunal. There are 
other ecclesiastical causes which may or may not be 
adjudged collegiately, according to the prudence of the 
bishop. Canon 1576, § 1, states: 


‘‘Reprobata contraria consuetudine et revocato quolibet con- 
traria privilegio: 
$1. Causae contentiosae de vinculo sacrae conditionis et 


53 Smith, Dictionary of Greek and Roman Antiques, “ Iudex.” 


46 The Judiciary Department of the Diocesan Curia. 


matrimonii, vel de iuribus aut bonis temporalibus cathedralis 
ecclesiae; itemque criminales in quibus res est de privatione 
beneficii inamovibilis aut de irroganda vel declarando excom- 
municatione, tribunali collegiali trium iudicum reservantur. 

S 2. Causae vero quibus agitur de delictis quae depositionis, 
privationis perpetuae habitus ecclesiastici, vel degradationis poe- 
nam important, reservantur tribunali quinque iudicum. 

S 3. Loci Ordinarius tribunali collegiali trium vel quinque 
iudicum cognitionem committere potest etiam aliarum causarum, 
idque praesertim quando de causis agitur quae, attentis tem- 
poris, loci et personarum adiunctis et materia iudicii, difficiliores 
et maioris momenti videantur.”’ 


This Canon emphasizes the necessity of the collegiate 
tribunal. Judgment rendered in a form other than that 
of a collegiate body of judges, a body composed of the 
number required by the Code for that particular cause 
would be invalid.*4 

Furthermore the above Canon specifies in what causes 
a collegiate tribunal is to be summoned. Some of the 
causes are contentious; others are criminal causes. A 
contentious cause is a cause arising out of a dispute be- 
tween individuals. A criminal cause having as its object 
the punishment of a crime.*® 

The following causes are explicitly reserved to a tri- 
bunal of three judges: 


a) Causes arising from a dispute as to the validity of 
the bond of Holy Orders or the validity of the matri- 
monial bond. 

b) Causes arising from a dispute concerning the rights 
and the possessions of the Cathedral Church. 

c) Criminal cases in which the point of issue is the 
privation of a permanent benefice (‘‘inamovibilis”’ ), or 
the removal or declaration of an excommunication. The 
sentence of excommunication here referred to is that 
which is the result of a judicial procedure, not the pun- 


°**“ Reprobata contraria consuetudine . . . ete ’’—Can. 1576. 
°* Cicero, pro Caecina 2, quoted by Smith, o. c., p. 648, 3. 


The Judiciary Department of the Diocesan Curia. 47 


ishment incurred lata sententia, or by very fact of the 
transgression of a particular law.*® 

A tribunal of five judges is required to hear the follow- 
ing causes: 

a) Criminal causes, serious in their nature, meriting 
such punishment as deposition, or removal from office, as 
in the case of heretics, schismatics and clerical apostates 
according to the provisions of Canon 2314, § 1, n. 2. 

b) Similarly a crime of so grave a nature as to be pun- 
ished by permanent divestiture of the religious habit, or 
the more severe penalty of degradation or a reduction 
from the clerical to the lay state in life, according to the 
prescriptions of Canon 2379, must be tried by a collegiate 
tribunal of five judges. 

ec) In the third paragraph of Canon 1576, the Code per- 
mits the bishop to entrust causes other than the above to 
a collegiate tribunal composed of three or five judges. 
When all circumstances are considered, such as the time, 
the place and persons in litigation, seem to indicate the 
need of great caution and prudence on the part of the 
one rendering the decision, then the safer method of a 
judgment rendered by the collegiate body of judges 
should be followed.” 

The Code leaves the matter of choosing the judges 
entirely to the prudence and wisdom of the Ordinary. 
He may select them from the number of diocesan synodal 
judges. He need not be influenced by circumstances of 
seniority, but may select and delegate as prudence dic- 
tates for a particular cause.°® 


Tur ASSESSORS. 


The assessors are mentioned in Canon 1575. An as- 
sessor 1s a specialist who is associated with a judge. 
By his expert advice and counsel he assists the judge in 
the consideration of intricate and perplexing questions 


ae (an. 2nee: 
&? Can. .1576, § 3. 
Sean 1b7 bs & a. 


48 The Judiciary Department of the Diocesan Curia. 


connected with a legal cause. The assessor has no offi- 
cial voice in the decision of the cause. 

In the old law, before the Code, the practice of calling 
in the assessors was left to the conscience of the judge. 
Should the judge call in an assessor and there were no 
particular need for such services, the judge personally 
was bound to recompense the assessor.°® ° 

The Code prescribes that to every judge is allowed the 
services of two assessors. The cost of their services is 
to be borne not by the judge but by the litigants in the 
case. The synodal judges may also act in this capacity, 
is selected by the bishop, according to the provisions of 
Canon 1575. 


Controversies Involving Religious. Who is to be the 
judge in causes in which the rights and property of reli- 
gious are the issue? If the litigants in the cause be men 
of the same religious order, the cause will be judged by 
the religious superior. Generally this religious superior 
will be either the Provincial Superior of the Order or 
the local Abbot of the monastery according to the nature 
of the case.®° 

Should a dispute arise between two provinces of a 
religious community, the cause must be brought before 
the Supreme Moderator of that particular community, 
unless the constitutions of the community have other pro- 
visions.°4 

The Ordinary of the place is judge wn prima instantia, 
or in the initial hearing of the proceedings in the follow- 
ing causes: Disputes between— 


a) Religious who are members of the same commun- 
ity, it being non-exempt or a lay community. 

b) Religious (moral or physical persons) of different 
communities. 

c) A religious in litigation with a secular priest. 

d) Religious and laity.® 


nd Verm.-Creusen, 0.0L, VOLE Boi is ie 
#0 Can: 1579; § 4: 
61 Can. 1579, § 2. Can. 1519, 8:9: 








The Judiciary Department of the Diocesan Curia. 49 


The Code offers a suggestion to the bishops concern- 
ing the handling of controversies and prosecuting crime 
which may be given here. In effect, the Code advises 
that although the bishop may always preside over the 
tribunals in the diocese, either as an individual judge, 
or as the presiding judge in a collegiate tribunal, never- 
theless, itis prudent that criminal causes and contentious 
causes be left to the ordinary tribunal. By the ordinary 
tribunal is meant to the officialis or the synodal judges of 
his curia.® | 


Causes IN EicciestasticaL TRIBUNALS. 


Ecclesiastical Causes. Having reviewed the question 
of judges and tribunals according to the Canons of the 
Code of Canon Law it is well to give a brief statement 
of what is to be understood by a legal cause in the dio- 
cesan tribunal. There are two divisions of these causes, 
contentious and criminal. The first, contentious, is a dis- 
pute or contention as to the possession or retention of 
rights, goods, or property. It is to be understood of 
course, that the Church in the Code is legislating solely 
for those, who by Baptism, are members of the Church, 
(Can. 87). Hence the contentious cause which finds its 
way before the bishop or the officialis or the collegiate 
tribunal of the diocesan court, must be a matter within 
the jurisdiction of the ecclesiastical court. Thus it may 
be the question of a disputed boundary between two 
parishes, the question about the removal or appointment 
to a benefice, a disputed debt between pastor and par- 
ishioners. 

The prosecution of an ecclesiastical offence is a cri- 
minal cause. The Code outlines for us the elements 
which constitute an ecclesiastical delictum. By a delic- 
tum in ecclesiastical law there is to be understood an 
external and morally imputable violation of a law to 
which is appended an ecclesiastical sanction, a sanction 
which is at least indeterminate. A delictum, therefore, 


68 Can. 1578. 
4 





50 The Judiciary Department of the Diocesan Curia. 


is a species of sin, the result of an external act which 
may be morally imputed to the one who performed it. 
An internal act of the intellect cannot be an ecclesiastical 
delictum. The Code affords many examples of ecclesi- 
astical delicta or those actions which come within the 
competence of the ecclesiastical courts and for which the 
responsible party may be prosecuted and punished ac- 
cording to principles of ecclesiastical penology. 

In the third part of the second section of Book Five 
we find the Canons which deal with penalties for certain 
specified crimes: the following are mentioned— 

a) Crimes against the faith and unity of the Church, 
such as apostasy, heresy, schism, those who spread false 
doctrines or are actively associated with hereties in their 
divine service. 

b) Crimes against religion, such as profanation of the 
consecrated species, sins of blasphemy, perjury, etc. 

c) Crimes against ecclesiastical authorities, persons 
or possessions. This includes such crimes as frauds, 
deceptions in the elections of the Sovereign Pontiff, legis- 
lators who interfere with the liberty and rights of the 
Church, those who join the masonic society, ete. F 

For the above mentioned and many similar offences 
the Church rightfully claims it within her jurisdiction 
to prosecute and punish those who are found guilty. 
Her purpose is to accomplish the salvation of the delin- 
quent, if possible, as well as to safeguard her life as a 
true society. 


AUDITORS AND RELATORS. 


In the judiciary department of the curia there are 
officers other than the judge, whose duty it is to assist in 
the work entailed in the conduct of a judicial process. 
Of these officers, the first to come to our consideration 
are the auditors and the relators.** 


Auditors. An auditor is a cleric, who, by reason of — 
jurisdiction delegated to him, is empowered to cite wit- — 


Art. 11, Cap, 1 Tit. TL See, T..Bookilvy.0..k Cy 





The Judiciary Department of the Diocesan Curia. 51 


nesses before an ecclesiastical court, hear their testi- 
mony and perform other judicial acts, in keeping and 
within the limits of the commission through which he 
acts.*° Wernz, considering the auditor in a more limited 
sense, states that the auditor is one, who, in ancient prac- 
tise, was commissioned by the Holy See to study up the 
particulars of an entire case, or some particular points 
of acase. The result of this research was then presented 
to the judge in the proceedings, and he rendered the sen- 
tence.*® The auditor is also known in legal terminology 
as the instructor, or the ‘‘ iudex Instructor.’’ ®7 


History. The office of auditor is found in the Roman 
Curia even in the Middle Ages. They were commissioned 
by the Holy See to hear certain ecclesiastical causes. The 
place where these cases were heard was called the audi- 
torium.*® The most important auditors in the Roman 
Curia were the Auditors of the Roman Rota. To this 
famous body or college of auditors the Roman Pontiffs 
turned for legal advice and help by sending certain causes 
to them for their earnest consideration.®® According to 
Durantis this body of auditors was constituted as a col- 
legium about the thirteenth century. At that time they 
gave their time to the study of legal causes and counseled 
the principal judge in legal causes or certain points of 
law but rendered no decisions themselves.7° In the 
course of time this body of auditors received jurisdic- 
_ tion from the Roman Pontiff and thus qualified to render 
decisions in contentious causes.”! 

_ As a result of more recent legislation the auditors, or 
| cognitores, as they are termed in the Decretals, have 
_ become a part of the bishop’s curia. The Instruction of 


65 Vermeersch, o. c., n. 40. 

86 Wernz, VI, n. 137; Cap. 10, X, de fide instr. II, 22. 
®* Vermeersch, vol. III, n. 40. 

PRES Ly \ ear, Oe 

6° Wernz, o. c., vol. VI, n. 138. 

7° Wernz, quoting Durantis, o. c., vol. VI, p. 124. 
Greg. XVI, Regal. Giud., page 327. 


52 The Judiciary Department of the Diocesan Curia. 


the Sacred Congregation of Bishops and Regulars,” 
gave certain regulations concerning auditors. In the 
instruction the auditors are referred to as the ‘‘actorum 
Instructor,’’ and in article 29 as the ‘‘causae instruc- 
tor.’? This latter expression is found in the Code. Can- 
ons 1580 which is the first in the article devoted to the 
auditor uses this phrase, ‘‘auditores, seu actorum in- 
structores.’’ 7 


Auditors in the Code. The first point which is quite 
clear from Canon 1580 is that the appointment of audi- 
tors in the curia of the diocese is left to the discretion of 
the bishop.7* He may choose one or many, according to 
the requirements for the causes in the diocese, and the 
bishop will determine whether the appointment is to be 
permanent or for a particular judicial process. If the 
bishop does not make the appointment, the office is to be 
filled by an appointee of the judge. 


Eligible for the Office. Can the bishop select a lay- 
man and appoint him to act as auditor or instructor in 
a cause? D’Angelo answers this question in the affirm- 
ative, provided that the layman be merely an instructor 
in the process, that is a legal advisor or counsellor. rh 
however, the instructor is to be appointed with true juris- 
diction in the cause, if he is to have a voice in the deci- 
sion, then the one appointed must be a cleric.”® 

The auditors in the diocesan tribunal may be selected 
from the number of synodal judges.”* The auditors in 
a tribunal of a religious community will always be se- 
lected from among the members of the community 
in which the litigation arises.77 In this matter due re- 
gard must be shown for the constitution and rules of the 
- community. 


72 Inst. S, C. EE. at RR., June 11, 1880, art. 12 and art. 29. 
73 Can. 1580, § 1. 

74 § 1, 

75 D’Angelo, o. c., p. 72; Noval, o. c., n. 183; Can. 193. 

76 Can. 1581. 

™ Can. 1581. 





The Judiciary Department of the Diocesan Curia. 53 


Duties of the Auditor. 'The duties of the auditor must 
be clearly stated in the mandate or the appointment 
which comes from the bishop: Generally the auditor will 
be expected to perform the following duties: 


1. The auditor will summon the witnesses to appear 
before the tribunal. 

2. He will examine the witnesses and hear their tes- 
timony. 

3. He will be prepared to give advice and information 
in the judicial procedure, in accordance with the direc- 
tions of the bishop who appoints him. 

The foregoing enumeration of the duties of the auditor 
is merely demonstrative, that is, the duties which are 
usually committed to the auditor. His capacity in each 
case will be determined by the wording of the document 
of his appointment.7® The possible extent of the activity 
of the auditor is discussed by Noval as follows: 


(1) The auditors may be commissioned to take care of 
the many duties detailed in a judicial proceeding from 
the ‘‘contestatio litis’? usque ‘‘ad publicationem pro- 
cessus.’’ 

(2) In contentious cases the auditor may be ordered 
to make the necessary preparations for the ‘‘introductio 
causae,’’ or the formal opening of the cause. These pre- 
paratory duties include, the acceptance or the rejection 
of the libellus or the allegation in which the charge is 
made by the plaintiff; the sending out of the first sum- 
mons to the parties in dispute and also the ‘‘contestatio 
litis’’? or formal opening of the cause before a court. In 
all criminal causes and causes arising from some notor- 
ious crime, the summons sent-to the criminals in the 
cause must be sent by the Ordinary.” 

(3) The auditor may not be commissioned to perform 
those acts in the process through which the cause is de- 
fined or settled, in either contentious or criminal causes. 
This excludes his officiating at the following: 


78 Noval, o. c., n. 135. 
79 Can. 1964, § 3. 


04 The Judiciary Department of the Diocesan Curia. 


a) lusiurandum decisorium, that is, the settlement of 
the dispute, or the point in dispute, by means of a state- 
ment of the proper party in the suit, made under oath 
and with the approval of the judge.*° 

b) Transactio, the effect of which is known in the Code 
as a compositio or concordia, is the settlement of a con- 
tentious cause by an agreement between the parties. 
This of course was negotiated in the presence of a court 
official other than the judge.*} 

c) Correptio judicialis, which is one of the means for 
the correction of delinquents suggested in ecclesiastical 
penal law.’? This remedy may be made use of in certain 
circumstances in place of a punishment. In the case of 
a recidiwvus, repeated admonitions may increase the final 
euilt.§8 

(4) In an appeal, ‘‘appelatio,’’ the auditor may be 
designated to take charge of a particular point pertain- 
ing to the new proofs to be established, or the strength- 
ening of proofs offered in the first instance of the trial. 
Thus he may recall and hear the testimony of a witness 
who was unjustly excluded from the first hearing.*4 

(5) The auditor is forbidden by the Code to conclude 
any cause by a definitive or final sentence. This act lies 
within the jurisdiction of the judge who presides over 
the court.®® 


The Removal of an Auditor from Office. The auditor 
may be removed from his office by the one who appointed 
him, hence by the Ordinary, or the judge. He may be 
removed at any moment of the process, either before or 
after the contestatio litis. The Code adds, ‘‘iusta tamen 
de causa,’’ that is, the removal must be for a just cause 
and should be accomplished without prejudice or injury 
to those parties who are the principals in the suit.8¢ 


8° Can. 1834; Can. 1836, n. 3. 84 Noval, o. c., n. 136. 
81 Can. 1925; Can. 1928. 85 Can. 1582. 
82 Can. 2306. 8° Can. 1583. 


83 Can. 2309. 


The Judiciary Department of the Diecesan Curia. 59 


The Relator in a Collegiate Tribunal. The relator, 
according to the Code, is one of the judges of a collegiate 
tribunal who is selected by the presiding judge as the one 
who is to render a written statement of the proceedings 
within the judicial assembly. This statement is to be a 
record of the evidence, allegations, proofs, judicial opin- 
ions and all important pronouncements of the judges 
which may influence the final sentence.** 


Origim. Noval agrees with Schmalzgruber, whom he 
quotes, in the statement that this office was especially 
needed and used in the major tribunals of civil rulers. 
According to Noval, it is an established legal custom to 
appoint a relator in collegiate tribunals in the civil courts 
in Spain.§§ 

In ecclesiastical procedure, the relator is found in the 
ancient pontifical tribunal of the Roman Rota. This 
being one of the highest courts in ecclesiastical proced- 
ure, and was composed as it 1s today of several auditors. 
To this judicial body the Pope referred disputed ques- 
tions for study and counsel.®® By the present legislation 
of the Code, the relator now finds his place, according to 
the general law, in the judiciary of the bishop’s curia. 


Canon Referring to Relator. Can. 1584: 


‘‘Tribunalis collegialis praeses debet unum de judicibus col- 
legii ponentem seu relatorem designare qui in coetu iudicum de 
causa referat et sententias in scriptis redigat; et ipsi idem 
praeses potest alium ex iusta causa substituere.’’ 


There are three important points concerning the rela- 
tor determined by the above quoted Canon. He is to 
be appointed by the senior or presiding judge of the 
tribunal. The duty to make the appointment is not im- 
posed absolutely ; the Code uses the word ‘‘debet.’’ The 
services of the relator are most necessary and helpful. 
On this point Noval writes: ‘‘quia magnopere expedit ut 


87 Can. 1584; Vermeersch-Creusen, vol. III, n. 40. 
88 Noval, o. c., n. 132. 
89 Lega, o. c., vol. II, n. 66. | : Mi 


06 The Judiciary Department of the Diocesan Curia. 


iam inde ab introductione uniuscujusque causae adsit 
unus qui examini ipsius specialiter incumbat, progressus, 
vicissitudines, et praecipuas probationes adnotet, con- 
clusiones inde emergentes colligat, quas deinceps oppor- 
tune proponat aliis iudicibus pro eorundum illustratione, 
cum moraliter impossible sit quod quilibet index tribun- 
alis collegialis pari conatu examini singularum causarum 
vacet.’’ The purpose, as stated by Noval, is for the con- 
venience of the judges of the cause, that an official record 
of the case may be had for their instruction as an aid to 
a just and intelligent discussion of the cause as presented 
in the trial.®° 

The one to be appointed must be, according to this 
Canon, one from the collegiate tribunal on which he is to 
serve. Noval is of the opinion that the praeses may not 
appoint himself to act as relator. His reasons for this 
opinion are based on the context of the law, and also 
because of the duties incumbent upon him as presiding 
judge, such as the instruction of the cause and more de- 
tailed duties if it be a court of second instance. 


Method of Appowmting—Removal. The appointment 
may be made orally, a document is not necessary.®! The 
duration of the appointment depends upon the judge who 
makes the selection. The removal may be made at any 
time for any cause which seems just to the praeses. 


Juridical Competence: 


“‘Tudex antequam aliquemi ad suum trahat tribunal et iudica- 
turus sedeat, videat utrum ipse sit competens, necne.”’ 


In this paragraph of Canon 1609, the Code imposes 
the obligation upon the judge, to be certain as to his 
competence to adjudge the persons and the causes which 
are brought to his tribunal. What is meant by com- 
petence in a judge? When is a tribunal competent? 


Competence, in the legal sense, means the qualification 
or the capability in a judge, by reason of which, he may 


~ Noval, 0.0), n. 187. *1 Noval, o. c., 139. 


Lhe Judiciary Department of the Diocesan Curia. 57 


render a decision in the disputes and crimes submitted 
to his court. Competence implies, and in fact is, juris- 
diction. Competence is jurisdiction limited and speci- 
fied. The limitation may be a limitation as to certain 
persons who come within the scope of a particular 
judge’s powers. The limitation may also be in regard 
to certain causes which may be legally submitted to a 
court. 

From this it follows that a judge has not universal 
power. The official in the diocesan curia has well deter- 
mined limits. These limits he may not exceed. An ex- 
ample of certain persons who are exempted from the 
court of the diocesan official are given in Canon 1557: 


$1. Ipsius Romani Pontificis dumtaxat ius est iudicandi: 

§1. Eos qui supremum tenent populorum principatum ho- 
rumque filios ac filias eosve quibus ius est proxime succedendi in 
principatum; 

§ 2. Patres Cardinales; 

§S 3. Legatos Sedis Apostolicae, et in criminalibus Episcopos, 
etiam titulares ... etc. 


Certain causes are also withheld from the court of a 
diocesan official : 


§ 3. Alias causas quas Romanus Pontifex ad suum advoca- 
verit iudicium, videt iudex quem ipsemet Romanus Pontifex 
designaverit.?2 


From this quotation it is evident that the Holy See 
can summon to itself or to specially appointed judges 
the causes which are deemed worthy of particular con- 
sideration. The bishop too can reserve causes to him- 
self, thereby limiting the competence of the official in the 
curia in such matters: 


Officialis unum tribunal constituit cum episcopo loci: sed 
nequit iudicare causas quas episcopus sibi reservat.?2 


In accordance with this regulation of the Code, the 
officialis has no jurisdiction over the causes which the 
bishop of the diocese reserves to himself for decision, 


*? Can. 1557, § 3; 1609. °8 Can. 1573, § 3. 


58 The Judiciary Department of the Diocesan Curia. 


Reason for Limitations. Why does the positive law 
assign limits to the power of jurisdiction of judges, thus 
determining their competency? Since the limitation is 
accomplished through reservations, the reason or foun- 
dation may lie in the purpose of reservations in the in- 
ternal forum. 

The limitation of jurisdiction is called ‘‘reservatio’’ 
in the Code. By this process, those who by ordinary 
right have the power of hearing confessions and inflict- 
ing censures can also summon certain causes to them- 
selves for judgment, by limiting the power of oeranting 
absolution in their inferiors: 

Qui ordinario iure possunt audiendi confessiones potestatem 
concedere aut fere censuras, possunt quoque, ... nonnullos casus 
ad suum avocare iudicium, inferioribus absolvendi potestatem 
limitantes.°* 


Although the Code does not state the reason for this 
summoning to a higher court, it may be assumed that the 
reservation is founded in disciplinary rather than penal 
reasons. It is not intended as a punishment for the de- 
linquent, but rather a regulation through which the crime 
will be given the expert attention of a higher court. The 
reasons adduced in favor of this opinion are as follows: 

(1) A reservation ‘‘per se’’ is not listed among the 
canonical penalties.°° 

(2) The limitation of jurisdiction affects the confessor 
directly by limiting his power to grant absolution. The 
penitent is affected indirectly in so far as only certain 
confessors can absolve from the sin. In civil Judgments 
the more serious crimes must be tried in higher courts, 
in order to safeguard the proper exercise of judicial pro- 
cedure.°® 

(3) An Instruction from the Holy Office, July 13th, 
1916, advises Ordinaries to ‘‘strive to form throughout 
their dioceses, learned, pious and prudent confessors and 


*4 Can. 893; § 1. 
*5 Can. 2255. 
°¢ Dargin—* Reserved Cases,” p. 11. 


The Judiciary Department of the Diocesan Curia. 59 


to these they should suggest those remedies which are 
adapted to check growing vices and which they them- 
selves would use if the penitent were sent to them.’’ %* 
It is remedies suggested in the above Instruction, not 
penalties. 

If the point developed through the foregoing para- 
graphs may apply equally to reservation in the external 
forum whereby the jurisdiction of a judge is limited, it 
may be safely stated in answer to our question that the 
purpose of reservations in the external forum is likewise 
disciplinary. Therefore, for more expert juridical treat- 
ment, some causes, specified both in general and particu- 
lar law, are summoned to a higher court. 


Incompetence in Judges. An official who does not 
possess the necessary jurisdiction is said to be incom- 
petent. Incompetence is relative or absolute. If the 
incompetence be absolute, the sentence of the judge 
is invalid.°* Thus the Roman Pontiff alone is com- 
petent to judge the ecclesiastical causes of civil rul- 
ers, the sons and daughters of these rulers, the Cardi- 
nals, etc.°® If the incompetence be relative, the judge 
being unable to claim jurisdiction by reason of the titles 
enumerated in the Code, Can. 1560-Can. 1568, the sen- 
tence is valid but illicit..°° Thus the Code regulates that 
the forum for an ‘‘actio de spolio’’ is the court of the 
Ordinary where the thing (over which the litigation 
arose) is located. Should it happen that the trial is 
brought before the official of the neighboring diocese, he 
would be relatively incompetent—presupposing that in 
this case the latter official had no claim to the case by the 
title of preoccupancy or other just title. 

It is most important then, that the judge make sure 
that he has the proper jurisdiction, that he is competent 
to hear the cause before he attempts to carry through 
the judicial procedure.1°4 


7 4, A. 8., vol. VIII, p. 313. 100 Can, 1559. 
°8 Can. 1558. 101 Noval, o. c., n. 191. 
°9 Can. 1557. ‘ 


60 The Judiciary Department of the Diocesan Curia. 


Forum. The word forum occurs frequently in treat- 
ises on the ecclesiastical judge and ecclesiastical pro- 
cedure. Reference is made to the internal and the ex- 
ternal forum, the ecclesiastical and the civil forum, the 
diocesan forum, the matrimonial forum and other similar 
modifications of this term. 

In ancient Rome, the forum was the place of public 
assembly. Public disputes and discussions as well as 
legal procedure found place for expression in the forum. 
In later years, the forum became the place of legislative 
assemblages and finally came to be the place known as 
the tribunal of justice. 

Tn ecclesiastical law the word forum may be used to 
designate the person of the judge, the court or loeality, 
where justice is administered and again to signify the 
judicial power, that is the power of judging in disputes 
and crimes. 

The following division may be given to indicate the 
important modifications of the forum in a discussion on 
ecclesiastical procedure: 

(1) A competent forum is a forum with full capacity 
to adjudge the cause brought before it. An imcompetent 
forum is one lacking the legal’ capacity to adjudge a 
cause, having no jurisdiction over the person or the 
cause. 

(2) The internal forum (forum conscientiae or forum 
poli), is that jurisdiction by which the Church deals with 
questions concerning the welfare of individual Chris- 
tians and their relations to God. The external forum 
has reference to matters touching the public and social 
good of the corporate body. The absolution from sin is 
proper to the internal forum. The concession of facul- 
ties or the power to absolve, belongs to the activity of 
the external forum. 

(3) The constitutional forum is that forum which is 
constituted by the law, and constituted exclusively by the 
law for the particular cause which it hears. Canon 1557, 
§1, n. 1, n. 2, n. 3, furnishes an example of this. The 
prorogued forum (forum prorogationis) is also consti- 


The Judiciary Department of the Diocesan Curia. 61 


tuted by law, but by the law a choice of fora is permitted 
and the one determined by the choice of the parties is the 
prorogued forum. This is exemplified in Canon 1566, § 2. 

(4) The common or general forum is that tribunal 
which is constituted for all persons and all causes, for 
example the diocesan forum.’°? The singular or special 
forum is constituted for special persons or causes. The 
causes of exempt religious have a special forum.!°? The 
tribunal of the Holy Office is to be sought when the cause 
is one concerning the doctrines of Faith. 

(5) A forum is universal if its power extends to the 
Universal Church; otherwise it is a particular forum. 

(6) A forum is ordinary when by a general law per- 
sons or causes are declared subject to it; a person or 
cause referred to a forum by way of exception, consti- 
tutes an extraordinary forum. 

(7) The forum necessarvum, or necessary forum is the 
forum which is prescribed by Law.'°* The voluntary 
forum is the forum selected by the parties, the choice 
being permitted by law.1% 

(8) The forum absolutum (absolute competens), is 
that forum which is established by law as the forum, 
absolutely excluding an approach to another tribunal * 
under pain of rendering both the judicial process and 
the sentences null.?°® If two courts be equally competent 
to hear a cause, the fora are then relatively (relative) 
competent.'°7 


Determining the Competent Form. Since it is most 
important that a cause be tried in the court of a judge 
having proper jurisdiction for the cause, the following 
points must be noted in determining the competence of 
the judge, or of the forum. It has been shown that the 
basis of limiting the competence is merely direct result 
of certain reservations, by which certain causes and cer- 
tain persons are summoned to another, at times to a 


102 Can. 1573. 295 Can, 1561. 
198 Can. 1579, § 1. 106 Can. 1576, § 1; Can. 1557. 
294 Can. 1560. 107 Can. 1560. 


62 The Judiciary Department of the Diocesan Curia. 


higher court. What are the criteria according to which 
these distinctions are made? Does limited competence 
always imply that the judge is absolutely incompetent 
to hear a cause reserved to another judge? 

Roberti answers these questions by showing a limita- 
tion of competence does not effect absolute incapacity in 
every case. The limitations may be relative, ‘‘proro- 
gabilis’’ or absolute, ‘‘improrogabilis.’’ If under stated 
conditions the law permits an extension of the compe- 
tence of the court, the parties in the suit consenting, the 
competence is relative. If the law admits of no exten- 
sion of the competence of the court, the limitation is 
absolute and the strict speeifications of the law must be 
observed as to the hearing of causes under pain of 
nullity. 

An example of relative competence is found in Can. 
1565: 

*‘Ratione contractus pars conveniri potest coram ordinario 
loci in quo contractus initus est vel adimpleri debet.’’ 


This means that a contract drawn up in the diocese 
‘*X,’’ and the fulfillment of the contract is to take place 
in the diocese ‘‘Y,’’ the judge in either diocese is com- 
‘petent, should the cause come to the courts. The choice 
of the judges made by the plaintiff in taking the cause 
to court determines the competence. 

On the contrary if the law prohibits any extension of 
competence, declaring that a judge, in a particular tri- 
bunal, and he alone may try a cause, to the exclusion of 
all other judges and tribunals, the competence of such a 
court is ‘‘absolute improrogabilis.’?? Canon 1567 illus- 
trates this principle: 

§ 1. Ipsius Romani Pontificis dumtaxat ius est iudicandi: 

1.° Eos qui supremum tenent populorum principatum ho- 
rumque filios ac filias eosve quibus ius est proxime suscedendi 
in principatum. 

2.° Patres Cardinales, etc. 

From this quotation of the Code it is established that 
the Roman Pontiff, and he alone, is competent to hear the 
causes of civil rulers, also the legal procedure involving 


The Judiciary Department of the Diocesan Curia. 63 


their sons, daughters and their immediate successors in 
line of office. The Cardinals and all others enumerated 
in this Canon are to be tried by the Roman Pontiff. 

In answer to the question concerning the criteria or 
norms which govern limitation, of jurisdiction, they may 
be narrowed down to four main distinctions. The limi- 
tations are made with respect to: 

(1) Persons—that is, ‘‘ex subiecto.’’ 

(2) The nature of the cause—‘‘ex obiecto.’’ 

(3) The rank or grade of the tribunal—whether it be 
a court of first or second instance. 

(4) The territorial limits—affecting either the judge 
or the plaintiff in the cause. 


Absolute Competence. Criteria based on either sub- 
jective or objective considerations, that is to say, if the 
limitation concerns specified persons or specified causes, 
the competence is absolute in that judge designated by 
the law. Hence the law: ‘‘Romanus Pontifex a nemine 
judicari potest.’’ 1°§ The Pope is above all jurisdiction, 
hence cannot submit to the jurisdiction of any judge.' 
The Cardinals and other persons and causes enumerated 
in Canon 1557 may be tried only by that tribunal speci- 
fied in the law. All other tribunals are absolutely in- 
competent. 

The limitation regulating the process of a trial should 
there be an appeal from a lower to a higher court, like- 
wise rendérs the higher court incompetent to hear the 
cause except on the same ‘‘causa petendi’’ as introduced 
in the first instance. This competence, or incompetence 
is absolute.1!° 

Relative Competence. Competence which is deter- 
mined by territorial limits, admits of the extension of 
competence and is relative competence.14!_ The forum 
delicti,1?? and the forum of domicile or quasi-domicile,!!* 
likewise the forum of the traveller in Rome !!* and many 
others mentioned in the Code are illustrations of relative 


competence. 
18 Can, 1556. 11.Qan. 1561. 114Can, 1562, § 1. 
10° Can, 1556. 12 Can. 1566. 


a Cag. LOLI. 118 Can. 1561. 


64 The Judiciary Department of the Diocesan Curia. 


I. Absolute Com- 
petence 
(none other can 
try cause. ) 


C. 1557. 


Relative Com- 
petence 
C. 1559—e. 1568 


THE COMPETENT FORUM 
(Can. 1556—Can. 1568.) 


For Rom, Pontiff 
personally. 


Roman Tribunals. 


(Rota and Seg- 
natura. ) 


General Prin. 
C. 1559. 


Forum Neces- 
sarium. 
no option deter- 
mined in law— 
(C. 1560.) 


Forum Liberum 
* potest ” 
C. 1561-—C. 1568 


iv 


Sr 


to 


Princes (Kings), Supreme Rulers, 
and Immediate Successors and 
wives and children. 
Cardinals—all even “ in petto.” 
Legates, Nuncios, Apostolic Dele- 
gates. 

All bishops in criminal causes. 


¢ 


Bishops in Residence in conten- 
tious cases, with exception of fiscal 
cases. 


. Dioceses and other moral persons 


having no Superior beneath the 
Supreme Pontiff, e. g. exempt re- 
ligious orders, monastic congrega- 
tions, etc. 


In first instance defendant must 
appear before one of the following 
tribunals—otherwise trial is il- 
licit. 

Other judges are relative incom- 
petent and must refuse cause and 
defendant can place exceptio. 
Actio sequitur forum rei. 


eee spolio before Ord. rei sitae. 


beneficium—Ord. of place of ben. 
administration—ubi geritur ad- 
ministratio. 


. imheritance—domicile of testator. 


. rat. dom.—coram Ord. loci dom. 


a) peregrinus is '“at home” in 
Urbe may choose proper Ord. 
b) peregrinus in Urbe for one 
year may refuse proper Ord. 
c) vagus—loco commorationis. 
d) religiosus—loco domus suae. 


. rat. ret sitae—loco rei sitae for 


actio in rem. 


. rat. contractus—in loco contrac- 


tus initi vel adimplendi. 


. rat. delicti—in loco patrato deli. 


rat. connexionis causarum all 
connected to be tried by same 
judge. 





The Judiciary Department of the Diocesan Curia. 65 


CHAPTER IV. 





Tuer Promotor oF JusticE—THr DEFENDER OF THE Bonp. 


Can. 1586: ‘‘Constituatur in diocesi promotor iustitiae et 
defensor vinculi: ille pro causis tum contentiosis in quibus 
bonum publicum, Ordinarii iudicio, in discrimen vocari potest, 
tum criminalibus; iste pro causis in quibus agitur de vinculo 
sacrae ordinationis aut matrimonii.”’ 


This canon prescribes that the offices of promotor of 
justice and the defender of the bond—‘‘ public defender,’’ 
should be established in every diocese. The former may 
be summoned by the ordinary to appear in either con- 
tentious or criminal causes of sufficient importance to 
demand this special attention. The latter is the official 
defender of the bond whenever there may be a dispute 
as to the validity of Sacred Orders or the existence of a 
valid matrimonial contract. 


Promotor of Justice. This promotor or procurator in 
ecclesiastical procedure is to be appointed by the legiti- 
mate ecclesiastical authority. In the diocesan curia the 
appointment will come from the ordinary. The duties of 
this ecclesiastical officer will be the defense of the rights 
of the Church, through judicial procedure, in contentious 
and criminal causes. The promotor of justice may ap- 
pear either as plaintiff or defendant. 

His duties consist in the safeguarding of ecclesiastical 
law and the prosecution of crime. Personal knowledge 
of an ecclesiastical crime will mean that he must take 
legal action against it. Should notification of a crime be 
brought to him, he must investigate the information, act 
as the guardian of the law, and at once begin proceed- 
ings with a view of punishing the delinquents. The posi- 
tion of the promotor of justice in ecclesiastical law, may 


* Bouix, o. c., I, p. 472, and Instr. S. C. Ep. and Reg. June, 1880, 
A. A. &., vol.: VI. 


dD 


66 The Judiciary Department of the Diocesan Curia. 


be likened to the position of the state-attorney in the 
governmental system of this country. 


History. How far back in history can one go in trac- 
ing the origin of the promotor of justice? In their stud- 
ies of the question canonists have gone back to the 
Corpus Iuris Civilis of Roman Law. In the Digest, for 
example, such titles as, ‘‘de procuratoribus et defensori- 
bus,? and in another place, ‘‘de officio procuratoris Cae- 
saris,? are found. Similar titles are to be found in the 
Code of the Corpus.t Noval suggests that even though 
the name ‘‘procurator’’ is found in these ancient sources, 
yet it is merely the name and not the same as the modern 
institution of ecclesiastical law.° 

Wernz answers the question as to the origin of the 
promotor of justice by stating that this ecclesiastical 
office is based on a notion of a similar office in the civil 
courts of France. This was the office of the ‘‘ministere 
public,’’ the director of public prosecutions. In the old 
French law, this minister was also known as the ‘‘pro- 
cureurs du roi’’—of the XIII century. 

Cardinal Lega does not agree with this opinion. In 
the opinion of this great canonist, the fiscal procurator 
had his beginning or origin in Canon Law. He writes: 
‘(Historia Procuratoris Fiscalis tenebris obvolvitur re- 
motioris antiquitatis ut certe in iure canonico suum ini- 
tium habet.’’® This beginning, according to Cardinal 
Lega, dates from the appointment of the Grand Inqui- 
sitor by the Pope.?' This Inquisitor appointed by Pope 
Innocent III was a special but permanent judge. He 
acted in the name of the Pope and in virtue of a direct 
delegation from the Holy See. It was the duty of the 
Inguisitor to deal legally with crimes against the Faith. 


opi B Foe WO Be § 

git A Wa 

4C. XI, 72, de procuratoribus. 

5 Noval, De Processibus, n. 140.—“ iniure romanorum nomen erat sed 
institutum non erat.” 

* Lega, De Judiciis Eccl., vol. I, pag. 171. 

7 Lega, o. c., page 173. 





The Judiciary Department of the Diocesan Curia. 67 


He was to act at all times according to the established 
rules of canonical procedure and could fix only the cus- 
tomary penalties prescribed by Canon Law.’ | 

Hiven before the decrees of the Fourth Lateran Coun- 
cil, by which the judicial office of Inquisitor was strictly 
and formally established, Lega points out that the Bish- 
ops of the Church were ever the public authority in the 
Church, ready to take legal action against crime and vice. 
In the course of time the bishops delegated this power 
to the “‘testes synodales.’? The duty of these synodal 
officers was to guard the observance of law and make the 
necessary inquisition into ecclesiastical crimes. The 
‘testes synodales’’ were later replaced by the ‘‘fiscales 
episcoporum’”’ also known as the ‘‘vicarii foranei’’ or 
the rural deans.? ; 


In France and Spain. The bishops of France had 
made use of this type of officer in their curia even before 
the pontificate of Pope Benedict XIV. In the sixteenth 
century the bishops of France appointed curial officers 
whose duty it was to promote or direct the investigation 
of ecclesiastical. crime—‘‘promoventes inquisitiones.”’ 
Noval quotes a document of the Sacred Congregation of 
the Consistory, ‘‘Hispalensis,’’ Sept., 1559 in which men- 
tion is made of a ‘‘promotor,’’ thus showing the knowl- 
edge and approval of this ecclesiastical office in the 
Church in Spain in the sixteenth century. 


In Italy. The office of fiscal procurator was instituted 
for the diocese and province of Rome by Pope Benedict 
XIII. The letter through which the institution was 
made was issued June 12, 1724. Italy adopted the office 
later than France. 

A document issued by the Sacred Congregation of 
Bishops and Regulars, Instruction of J une, 1880, directed 
that the office of promotor be established in every dio- 
cesan curia throughout the world. Hence Canon 1586 of 


* Cath. Ency., art. Inquisition. 
* Benedict XIV, De Synodo Dioc. c. 3, n. 8. 


68 The Judiciary Department of the Diocesan Curia. 


the Code is substantially a repetition of this Instruction 
of the Sacred Congregation of Bishops and Regulars. 
The promotor of justice, by general law, is now declared 
to be a very necessary officer in every diocese. This 
officer is appointed in exempt clerical religious commu- 
nities and is to preside over the tribunals in accordance 
with the specifications of the Code.’ 


Defender of the Bond. The defender of the bond is an 
ecclesiastical officer whose duty it is to stand firmly for 
the truth and strict justice when there is a dispute con- 
cerning the validity of a marriage or the validity of Sac- 
red Orders. As Noval writes, the defender of the bond 
is but a species of the office of the promotor of justice. 
His supervision in the present capacity is over the mar- 
riage tie or the bond of Sacred Orders.** 


History. This particular office in matrimonial trials 
was instituted by Pope Benedict XIV in the constitution, 
‘‘TDei miseratione,’’ Nov. 3, 1741. It is mentioned and 
confirmed in the later constitution ‘‘Nimiam licentiam,’’ 


of March 1743, issued by the same Pontiff. This most | 


wisely conceived ecclesiastical institution was retained 
by many later Instructions from the Sacred Congrega- 
tions, for example in the Instruction of the S. C. de Prop. 
Fide ad Stat. Foed. Am. of Sept. 1883. The title and 
office is retained in the Code as shown in the Canon 
quoted at the opening of this chapter. 


Purpose. The purpose in instituting this office was to 
provide an official person whose sole duty would be to 
stand for, and legally defend the matrimonial bond until 
the invalidity would be ineontestably established. 


Through this officer a check was placed on the judge in > 


a matrimonial trial to prevent a hasty and precipitate 
decision nullifying the contract. Likewise, a check was 
organized for the parties involved in the contract, lest 
through fraudulent cooperation, one or the other refuse 


19 Can. 1589, § 2; Can. 655, § 2. 
11 Noval, o. c., n. 141. 





The Judiciary Department of the Diocesan Curia. 69 


to answer the summons to court, give false testimony or 
have recourse to other deception to obtain a favorable 
sentence.?? 


The Defender in Sacred Orders Trial. He is also a 
public official whose duty it is to uphold the validity of 
an ordination which is contested in the ecclesiastical 
court. He is a promotor of justice in a specified field 
of action. This office was instituted through an Instruc- 
tion of the Sacred Congregation of the Council, issued 
in the year 1836. The provisions of this instruction, in 
a general way, forms the basis of the present legislation 
of the Code in regard to the defender of the bond in a 
case where the validity of an ordination is questioned. 


Canonical Requirements for Offices. In these offices 
as in other offices of the curia, the Code specifies, lays 
down explicit regulations as to what persons may be 
chosen, and the moral and mental qualifications requisite 
for a candidate: 

(1) The one selected for the office of promotor of jus- 
tice or defender of the bond must be a priest. 

(2) As to moral fitness, the Code requires that the 
candidate enjoy the esteem and admiration of honest 
men. He must possess a good name. 

(3) Intellectually, the Code prescribes a knowledge of 
Canon Law, either a doctor in this science or a good 
knowledge of the law. Added to this the candidate must 
be a prudent priest in whom there is a prudently regu- 
lated zeal for the virtue of justice. 

(4) The promotor of justice in a tribunal of a reli- 
gious order should be a member of the order, a priest of 
good name, a canonist, upright and zealous for truth and 
justice.t% 


Presence Requred for Validity of Legal Process. In 
quoting Canon 1586 at the opening of this chapter and 
in the paragraphs which followed, the origin and pur- 


22 Noval, o..c.,'n. 141. 
13 Can. 1589, § 1 and § 2. 


70 The Judiciary Department of the Diocesan Curia. 


pose of instituting the office of promotor was stated. 
There will arise cases in ecclesiastical procedure in which 
a contest arises over the validity of a matrimonial con- 
tract, and consequent obligations, or a contest over the 
validity of sacred orders and the obligations arising 
from the reception of this Sacrament. In every such 
case, the presence of the promotor of justice or the de- 
fender of the bond, as the case may demand, is required 
by the Code.'* If the judge fails to cite the promotor, 
the process is null,® 

The promotor of justice must answer the citation to 
the court which the judge issues. Should the promotor 
appear ‘‘non citato,’’ his presence is effective and the 
process is thus rescued from nullity and invalidity.'® 

Having answered the citation, is it necessary that the 
promotor be present for all the acts and proceedings of 
the court? Paragraph two of Can. 1587 answers this 
question in the negative. It is necessary however that 
the promotor review and examine the acts of the process 
as drawn up by the appointed notary. Having examined 
these the promotor or defender, as the case may be, may 
then, in writing or orally, make any comments and re- 
commendations which the case under consideration 
demands.1* 

Noval interpreting this Canon, states that, after the 
promotor has acknowledged the citation he may absent 
himself from all the court sessions, being mindful of his 
obligations, of course, to carefully examine the record of 
the process.1® Noval bases this statement on the pre- 
seription of Canon 1680. 


Promotor and Defender in a Single Officer. It has 
already been pointed out that the defender of the bond is 
simply acting as a promotor of justice in a matrimonial 
cause or the cause of a disputed ordination. Defending 
_ Justice and truth when there is an attempt to dissolve 


14 Can. 1586. ** Can. 1587, § 2. 
+ Can. 1587, § 1. 78 Noval, o. ¢., n. 141. 
16 Can. 1587. 


a 


The Judiciary Department of the Diocesan Curia. 71 


the sacred bond of matrimony, or the sacred obligations 
of Holy Orders are but two of numerous possible pro- 
cesses where the presence of the promotor of justice may 
be required. Hence the Code permits and suggests that 
the promotor and defender may be vested in a single 
officer in the curia. This admonition is quick to follow, 
however, ‘‘nisi multiplicitas negatiorium et causarum id 
prohibeat.’’?® Should the promotor of justice be called 
to act in a matrimonial case, in which there is an attempt 
to annul the bond, the very nature of the case demands 
the presence of two distinct officers, a promotor and a 
defender. The ordinary of the diocese, knowing well the 
needs of his diocese, will construct this section of his 
curia according to the needs of his diocese, and at the 
same time keeping before his mind the will of the Church 
as expressed in the Code. 

The Code leaves it entirely to the judgment of the or- 
dinary as to whether this officer shall be appointed with 
a certain degree of permanence—‘‘ad universitatem cau- 
sarum,’’ or merely for a particular and specified cause. 
These conditions will be specified when the appointment 
is made, as well as any reservations, limiting the power 
of these officers which the bishop may deem necessary to 
make.?° 


Cessation of the Office. If the see of the diocese be 
vacated, what is the status of the promotor of justice 
and the defender of the bond? This question is answered 
in Canon 1590: 


$1. Promotor iustitiae et vinculi defensor electi ad univer- 
sitatem causarum a munere non cessant, sede episcopali vacante, 
nec a vicario Capitulari possunt removeri; adveniente autem 
novo Praelato, indigent confirmatione. 


If the appointment was made as permanent, ‘‘semel 
pro semper,’’ the promotor of justice will continue to 
hold office—‘‘sede vacante.’’ Logically then, if the ap- 


1° Can. 1588, § 1. 
*° Can. 1588, Noval, o. c., n. 146. 


72 The Judiciary Department of the Diocesan Curia. 


pointment was ‘‘ ad tempus,’’ for example, for a particu- 
lar cause, when the cause is decided the office ceases ipso 
facto. 

The appointment cannot be recalled by the vicar capi- 
tular. If an apostolic Administrator be appointed over 
the diocese and his appointment is permanent, he may 
recall the appointment. This right is granted in para- 
graph two of Canon 1590 and Canon 315. The former 
law grants the bishop the right to remove the officers we 
are considering for any just cause. The latter citation 
regulates the rights and honors which accompany the 
office of permanent Apostolic Administrator—‘‘iisdem 
iuribus et honoribus fruitur, iisdemque obligationibus 
tenetur, ac E/piscopus residentialis.’’ 71 

With the advent of the new prelate, the promotor of 
justice and defender of the bond will need a confirmation 
of their position in office from him. This is not a new 
election, but rather an approval of their continuance in 
the service of the diocesan curia. Hence they will con- 
tinue in office if they are not removed by an express re- 
call of the appointment. The law imposes the obligation 
of confirmation on the ordinary of the diocese, the obli- 
gation of confirming or removing these officers of the 
curia in the diocese to which he is assigned.?? 


Tar Notary. 


The notary is one who, from a series of notes or signs 
constructs an authentic report of an event to which he 
was a witness. A notary in the canonical sense is thus 
defined by Noval: ‘‘est persona publica, creata a publica 
auctoritate, ut de actis data opera et solemniter coram 
se gestis, et ab ipso sub forma publici instrumenti, scrip- 
tis vel subscriptis, faciat fidem publicam.’’ 7% 

The notary, therefore, is to be considered a public 
person, appointed by one in authority, and his notes or 


21 Can. 315, § 1. 
22 Noval, o. c., n. 148. 
28 Noval, o. c., n. 1-38. 


The Judiciary Department of the Diocesan Curia. 73 


record has more weight than the report of a mere private 
person acting without authorization. 

Notaries, in their legal rating, may be classed as judi- 
cial and extra-judicial. The former, or judicial notaries, 
are appointed to record judicial acts, such as an ecclesi- 
astical trial. The latter, extra-judicial notaries, may be 
called upon to authenticate other acts or documents such 
as sale, contracts, wills and similar acts. 


History. Both the title and office of the notary can be 
traced back to the Imperial Court of Rome. In the 
Codex Theodosianus there were a set of laws and deci- 
sions dealing with the notaries of the imperial Court.** 
Notaries or chancellors were used in most of the royal 
courts of earlier times and likewise in the papal chan- 
ceries and the episcopal sees.”° It is thought by certain 
writers of history that the seven regional secretaries in 
the city of Rome were appointed by Pope St. Clement. 
The special work of these notaries consisted in record- 
‘ing the ‘‘acta martyrum.’’ 7° 


Eccelsiastical Notaries. Various names have been used 
in the course of time to indicate this ‘‘persona publica,”’ 
to whom the task was entrusted of constructing authen- 
tic public records of legal proceedings in their various 
phases. Such titles as scrinarwus, tabellio, notarius, actu- 
arwus, cancellarius, secretarius, are quoted by canonical 
writers. With a more definite terminology in ecclesias- 
tical law, such as we have today, these various terms 
have come to have a fixed and definite meaning. 

The scrinarius is now an archivist. The tabellio re- 
fers to the cursor of letters. The notarius is the notary, 
but his duties are extrajudicial acts. The actuarius is 
the recorder of official reporter of judicial procedure.?7 
Though the Code uses the term ‘‘notarius,’’ in describ- 


24 Cod. Thed., 6, 16, De primicerio el notariis. 
?° Boudinhon—Cath. Ency., Notaries. 

26 Wernz, o. c., vol. V., p. 114, note. 

27 Noval, o. c., n. 139. 


74 The Judiciary Department of the Diocesan Curia. 


ing the duty to be performed, it adds, ‘‘qui actuarii offi- 
cio fungatur.’’ °° 

Previous to the Code, the services of the judicial not- 
ary, or the actuarius, in ecclesiastical tribunals, were 
required by the general law. This regulation was made 
by Pope Innocent III in the Fourth Council of the Lat- 
eran in the year 1215. To quote from the Decretals: 
‘‘De probationibus,’’ (statuit), ‘‘ut tam in iudicio ordi- 
nario quam extraordinario iudex semper adhibeat aut 
publicam si potest habere personam, aut duos viros 
idoneos, qui fideliter universa iudicii acta exscribant.’’ °° 
This regulation is reaffirmed in the Code, and the validity 
of the record of the proceedings is dependent upon the 
presence and authentic report which must be drawn up 
in legal form by the actuary. 


Notaries in the Code. Canon 1585 directs the judge 
‘Contequam causam cognoscere incipiat,’’ to appoint an 
actuary, a clerk for the recording of the process of the 
trial. This clerk, the Code prescribes, is to be selected 
from the number of lawfully constituted notaries, who 
are to be appointed by the ordinary of the diocese, fol- 
lowing the regulations of Canon 873. Should the bishop 
designate a clerk for the trial, the judge will recognize 
the appointment and proceed with the hearing of the 
trial. 


The Appointment of Notary. The following points 
from the Second Book of the Code may be quoted here in 
the consideration of this topic. 


(1) The bishop is empowered to appoint the notaries 
in his diocese. The acts and records subsequently drawn 
up by these notaries are to be regarded as public and 
authentic.*? 


(2) At the time of the appointment or later the ordi- 


28 Can. 1585. 

29, 11, X, De probationibus, II, 19. 
89 Can. 1585, § 2. 

31 Can. 373, § 1. 


The Judiciary Department of the Diocesan Curia. 7d 


nary is free to make whatever limitations he chooses as 
to the nature of the notaries’ service. He may appoint 
as judicial, extrajudicial, or merely for certain definite 
and determined legal acts.?* | 

(3) If there be a scarcity of clerics in the diocese, the 
bishop may: appoint laymen to this office. However, in 
‘‘eriminalibus clericorum’’ the actuary should be a 
priest.®* 

(4) The notaries must be men of good name and above 
all suspicion.*# 

(5) The length of the term of office of a notary is 
entirely dependent upon the will of the one who makes 
the appointment. Hence, constituted by the ordinary of 
the diocese, they may be removed or suspended from 
office by the ordinary or successor or superior. The 
vicar capitular can act in the matter only with the con- 
sent of the Cathedral Chapter.*° 


The Duties of a Notary. Itis the duty of a notary to 
prepare a written report of the court proceedings, in- 
cluding the acts, citations, decisions and the sentences of 
the court. The written report of the proceedings in the 
court must be given with detailed information as to the 
place, day, month and year. To those who lawfully make 
the request ‘‘servatis servandis,’’ the notary will show 
a copy of his report. ‘The official capacity to act as clerk 
or in general as a notary is confined to the territorial 
limits of the diocese of the ordinary who appointed him.*® 


Cursors AND APPARITORS. 


The cursor and apparitor are also listed among the | 
officers in the judicial department of the diocesan curia. 
Canon 1591 states the nature of the duty which is proper 
to these offices: ‘* ad acta iudicalia intimandae, nisi alia 
sit probata tribunalis consuetudo’’; concerning the ap- 
paritores the same Canon states: ‘‘item apparitores ad 


22 Can. 373, § 2. %® Can, 373; § 4. 
33 Can. 373, § 3. 86 Can. 374. 
$¢Can. 373, § 4. 


76 The Judiciary Department of the Diocesan Curia. 


sententias ac decreta iudicist, eo commitente, exsecutioni 
mandanda.’’ Before giving an interpretation of this 
Canon a few words on the history will be given. 


History. In Roman Law the legal title of ‘‘ viator,”’ 
‘Capparitor,’’ and ‘‘nuncius’’ is applied to this office.** 
These officers performed the menial tasks, such as carry- 
ing messages and reports for the magistrates and sena- 
tors. Livy refers to the ‘‘viatores’’ attached to the ser- 
vice of a particular magistrate. The magistrate might 
order the viator to execute a certain sentence, thus he 
acted in the capacity of a lector. 

In the Gallic law the cursor was merely a messenger 
in the service of a judge. At least this was the position 
before the Revolution. After the French Revolution, the 
cursor acted with greater power, conducted the execu- 
tion of a sentence independent of a judicial sentence or 
an order from the judge. 

According to the German law, the cursor and appari- 
tor exercise the powers of jurisdiction, since according 
to that Code the execution of a sentence implies juris- 
diction. 

In Italian and modern French law these officers prob- 
ably have only administrative powers. It seems to be 
the opinion of jurists that the execution of a sentence 
does not imply the power of jurisdiction. 


Cursor in Canon Law. The distinction between the 
office of the cursor and that of the apparitor seems to 
be very slight. They act according to the order which 
comes to them from the judge. This order may be the 
conveying of judicial information, a message from the 
court to one of the parties in litigation. The judge may 
commit the execution of a sentence, which he has passed, 
to the apparitor. Hence the apparitor is to be consi- 
dered as the material agent who accomplishes the will of 
the judge. The phrase ‘‘ad sententia . . . exsecutioni 
mandanda’’ is to be interpreted in the light of the canons 


® Smith, Dic). of Antiq. cf. “ viator.” 


The Judiciary Department of the Diocesan Curia. 77 


comprised under the seventeenth title of Book Four of 
the Code. This title deals expressly with the execution 
of a judicial sentence. According to the norms of this 
section, ‘‘ Sententiam execution mandare debet per se 
vel per alium Ordinarium loci im quo sententia primi gra- 
dus lata est.’’°® The judge is the true and proper ‘‘ex- 
secutor’’ of the judicial sentence. 

One and the same person may be commissioned to act 
as cursor and apparitor.*® Laymen may be selected for 
this office unless the case be such that prudence requires 
the services of an ecclesiastic. The judge of the cause 
will determine this point according to the nature of the 
cause. Furthermore, he may even dispense with the ser- 
vices of these messengers in the court if there exist— 
‘‘alia probata tribunalis consuetudo.’’ Such an approved 
custom or practise would be the use of special or regis- 
tered mail for the sending out of messages and notifica- 
tions from the court. A registered letter is quite safe, 
and its use well enough established to replace the ser- 
vices of the cursor. 


The Oath of Fidelity. The Code requires that the 
bishop make the appointments, to the various offices 
which have been considered in the preceding pages, in 
writing. Before proceeding to the duties of their re- 
spective offices, the officers of the curia make a promise 
of fidelity in serving the bishop and the interests of the 
diocese. They will furthermore promise to observe the 
norms of the law in fulfilling their various duties. The 
bishop will also exact of the officers in the curia that they 
hold all official matters as secrets to be kept within the 
limits of the official household.*° 


8 Can. 1920. 
*® Can. 1591, § 2. 
49 Can. 364. 


78 The Judiciary Department of the Diocesan Curia. 


BIBLIOGRAPHY. 





Acta Sanctae Sedis, Romae, 1865-1908. 

Codex Iuris Canonici, Neo Eboraci, 1918. 

Collectanea S. Cong. de Prop. Fide, Romae, 1918. 
Corpus Iuris Canonict, Richter-Friedburg, Lipsiae, 1922. 
Benedict XIV, Tom. II, De Synodo Diocesano. 

Corpus Iuris Civilis, Paul Kreuger, Berlin, 1895. 


REFERENCES. 





Analecta Juris Pontificii, Paris, 1858. 
Bouix, D., Tractatus de Judiciis, Paris, 1883. 
Bouix, D., Institutiones Juris Canonici, Paris, 1859. 


Burke, Thomas J., Competence in Ecclesiastical Tribun- 
als, Washington, 1922. 


Duargin, Edward Vincent, Reserved Censures, Washing- 
ton, 1924. 


Devoti, Joannis, Institutiones Canonicae, Leodii, 1883. 

Fournier, l’Abbé Edouard, Les Origines du Vicaire Gén- 
éral, Paris, 1922. 

Hinschius, Dr. Paul, System des Katholischen Kirchen- 
rechts, Berlin, 1878. 

Lega, Cardinal, De Judiciis Ecclesiasticis, Roma, 1890. 

Leurenius, R. Petrus, Forum Beneficiale, Venetiis, 1752. 

Chelodi, Joannes, Jus Poenale, Tridenti, 1920. 


Noval, Juseph, O. P., Comm. Codicis Juris Canonici, Ro- 
ma, 1920. 


Maroto, Philippo, Institutiones Iuris Canonici, Roma, 
9. | 


The Judiciary Department of the Diocesan Curia. 79 


Ojetti, Bendetto, De Romana Curia, Roma, 1910. 

Pellegrino, D. Abb. Carolo, Prasia Vicariorum, Venetis, 
1706. 

Reiffenstuel, Jus Canonicum Universum. 

Thomassinus, Vetus et Nova Ecclesia Disciplina, Roma, 
1706. 

Trudel, Rev. P., S.S., Dictionary of Canon Law, Herder, 
1919. 

Primmer, D. M., Manuale Juris Canonici, Friburgi Bris- 
goviae, 1922. 

Wernz, Francis X., Jus Decretalium, 1924. 

Pallavicini, P. Sforza, Histoire de Concile de Trente, 
Montrouge, 1844. 

Vermeersch-Creusen, Hpitome Juris Canonici, Mechlin, 
1924. 

Smith, William, Dictionary of Greek and Roman Anti- 
quities, London, 1875. 

~ Catholic Encyclopedia, 15 vols., New York, 1917. 

Schmalzgrueber, Jus Ecclesiasticum Universum, Romae, 
1843-1845. 


| ray ¥ 
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UntIversivas CatHorica AMERICAE 





Wasuinetonu, D. C. 





Sacka FacuLttTas JURIS CANONICI 





1924-1925 





No. 26. 


CANONES 


(81) 


nt 
Ne 
rah Att un 
wh He | 
nae Ne Ai 


AIRY Ws 
OLN) Y 





DEUS LUX MEA 


CANONES 


QUOS 
AD DOCTORATUS GRADUM 
IN 


IURE CANONICO 


Apud Universitatem Catholicam Americae 
CONSEQUENDUM 


PUBLICE PROPUGNABIT 
HENRICUS FRANCISCUS DUGAN 
SACERDOS DIOECESIS INDIANAPOLITAN AE 


IURIS CANONICI LICENTIATUS 


HORA X A. M. DIE XVIII, MAIT A. D. MCMXXYV. 


CANONKES. 





De Notione et Divisione Juris Canonici. 


. De Collectionibus Canonum usque ad saecu- 


lum IX, presertim Latinis. 


. Collectio Pseudo Isidoriana. 

. De Decreto Gratiani. 

. De Collectione Decretalium Gregorii IX. 
. De Origine et Editione Novi Codicis. 


Boox I. 


. Canones 8-11. De Promulgatione Legum 


in Keclesia. 


. Canones 15-16. De Legibus Irritantibus 


seu Inhabilitantibus. 


. Canones 17-20. De Interpretatione Legum 


Eeclesiasticarum. 


. Canones 25-80. De Consuetudine. 
. Canones 31-34. De Temporibus Supputa- 


tione. 
. Canones 12-14. De Legis Canonicae Sub- 
iecto. 
Boox III. 


. Canones 738-744. De Ministro Baptismi. 


Canones 777-779. De Collati Baptismi Ad- 
notatione et Probatione. 


. Canones 814-819. De Missae Ritibus et Ce- 


remoniis. 


. Canones 820-823. De Tempore et Loco Mis- 


sae Celebrandae. 


Canones 853-857. De Subiecto Sacrae Com- 


munionis. 
Canones 858-866. De Subiecto Sacrae Com- 
munionis. 


. Canones 867-869. De Tempore et Loco quo 


Sacra Communio Dis- 
tribui Potest. 
(84) 


XX. 
XXII. 


AXLE 
XXIII. 


XXIV. 


XXYV. 
XXVI. 
XXVIT. 
XXVIII. 


XXIX. 
XXX. 
XXXI. 
ALT 
XXXITT. 
XXXIV. 


XXXV. 


XXXVI. 


Canones 871-874. De Ministro Sacramenti 
Poenitentiae. 
Canon 883. De Potestae Audiendi Confes- 


sionum pro Sacerdotibus in 
Maritimo Itinere. 

Canon 884. De Absolutione Complicis in 
Peccato Turpi. 

Canones 1043-1044. De Potestate Dispen- 
sandi ab Impedimentis Ma- 
trimonialibus Urgente Mortis 
Periculo. 

Canon 1045. De Potestate Dispensandi ab 
Impedimentis Detectis cum 
Omnia Parata Sunt ad Nup- 


tias. 


Booxs ILV-V. 


Canones 2195-2198. 
Canones 2199-2207. 
Canones 2214-2219. 


Canones 2257-2267. 
Canones 2278-2285. 
Canones 1556-1558. 
Canones 1552-1555. 
Canones 363-365. 

Canones 361-367. 

Canones 1580-1584. 


Canones 1596-1590. 


Canones 1572-1574. 


De Natura Delicti eius- 
que Divisione. 

De Imputabilitate De- 
heti. 

De Natura Poenae Kc- 
clesiasticae. 

De Excommunicatione. 

De Suspensione. 

De Foro Competent. 

De Judiciis. 

De Curia Diocesana. 

De Vicario Generali. 

De Auditoribus et Rela- 
toribus. 

De Promotore Justitiae 
et Defensore Vinculi. 

De Judice. 


Roman Law. 


XXXVII. The Three Grand Periods of Roman Law and 
some of the General Principles of Roman 


Law. 
(85) 


XXXVITT. 


XXXIX. 


XL. 
XLI. 
XLII. 
XLII. 
XLIV. 
XLV. 
XLVI. 
XLVILI. 
XLVITII. 


XLIX. 
L. 


LI. 


LIL. 


LUI 


LIV. 
LV. 


LVL. 


LVII. 
LVIII. 


LIX. 
LX. 


The Various Books of the Corpus Iuris Civ- 
ilis considered as to Source and Content. 
Personality Defined and the Essential Condi- 

tions for Personality in Roman Law. 
The Commencement and End of Personality. 
The Modes of Enslavement. 
The Release of a Slave. 
Roman Conception of Marriage. 
Matrimonial Impediments in Roman Law. 
Divorce in Roman Law. 
The Paternal Power. 
Tutorship. 
Curatorship. 


INTERNATIONAL Law. 


The Nature and Origin of International Law. 

The Fundamental Principles of Interna- 
tional Law. 

The Non-Territorial Property of a State. 

Sources of International Law. 

The Diplomatic Agents of a State. 

Piracy. 

The Monroe Doctrine. 

Extradition Rights. 

Consular Service for a State. 

Modes of Setling Disputes Amicably. 

General Rights and Obligations of States. 

The Advantages of Leagues and World 
Courts for States. 


Vidit Sacra Facultas: 


Puiiprus BERNARDINI, S. T. D., J. U. D., Decanus. 
Lupovicus H. Mortry, s. T. D., J. c. p., a Secretis. 
Vatentinus T. ScHaar, 0. F. M., J. C. D. 
Francesco Larpone, §. T. D., J. U. D. 

MaNnoeEt DE Outviera LIMa, L. H. B. 


Vidit Rector Universitatis: 


M T'nhomas J. SHAHAN, S. T. D. 


(85) 


BIOGRAPHY 





The writer of this dissertation, Henry Francis Dugan, 
was born in Indianapolis, September 30, 1889. His pri- 
mary education was received in St. Anthony’s Parochial 
School of Indianapolis. He was a student in Manual 
Training High School in the same city for two years. 
His academic course was completed at St. Mary’s Col- 
lege in Kentucky, under the Resurrectionist Fathers in 
1910. He spent six years at St. Meinrad Seminary, St. 
Meinrad, Indiana, where he was ordained priest in the 
year 1916. For four years he served as curate at the 
Church of the Assumption in Evansville, Indiana, and 
taught in the High School during that time. In 1920 he 
was appointed to teach Philosophy and History in St. 
Mary-of-the-Woods College, St. Mary-of-the-Woods, In- 
diana. In the following year he was made Head of the 
Department of Economics and Social Science in that 
College. In the years 1921 and 1922 he attended the 
Summer Sessions at Columbia University, New York, 
registering in the School of Economics. In the fall of 
1923, he entered the Catholic University of America and 
registered in the School of Canon Law. In November, 
1923, he received the degree of Bachelor of Canon Law, 
and the degree of Licentiate in Canon Law in June, 1924. 


(87) 


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